STATE NORKAL SCHGGL, A STUDENT'S MANUAL ENGLISH CONSTITUTIONAL HISTORY 4 b ^ 4 - 3 i A STUDENT'S MANUAL ENGLISH CONSTITUTIONAL HISTORY ^a -^s DUDLEY JULIUS MEDLEY, M.A. PROFESSOR OF HISTORY IN THE UNIVERSITY OF GLASGOW FORMERLY TUTOR OF KEBLE COLLEGE, OXFORD AND SOMETIME EXAMINER IN THE HONOUR SCHOOL OF MODERN HISTORY THIRD EDITION ® jtort) B. H. BLACKWELL, 50 and 51 BROAD STREET Xon^on SIMPKIN, MARSHALL, HAMILTON, KENT & CO. 1902 bcH 1906 First Edition^ printed June 1894 * Second Edition, printed Jafiuary 1898 Third Edition, printed April 1902 PREFACE TO THE FIRST EDITION An author needs to justify the appearance of so ambitious and yet so imperfect a work as I fear this will be found. A twofold reason has prompted its compilation. In the first place, text-books on Con- stitutional History are few, and experience suggests that those which exist deal with the subject on unsatis- factory lines. The development of an institution is subordinated to the details of a general narrative. No doubt the natural interest in the play of individual character will always place so-called political history in the van of historical pursuits. But if the study of history is, as it promises, to become a great educational medium, it is to the history of institutions rather than of dynasties or of individual men that we must look to provide the fittest mental training. As a preliminary it is necessary to trace the evolution and growth of each institution or set of institutions separately and apart from the accidental events of contemporaneous political history. Otherwise the institution is lost sight of in a mass of unimportant personal detail ; it is difficult to pick up the threads of its development while the attention of the student is at every turn called off to irrelevant matter, and the mind altogether fails to comprehend the great impersonal movement by which an institution shows itself to be something greater than the greatest man who has helped to mould and to work it. In fact, our urgent need is a scholarly Dictionary VI PREFACE of English Institutions apart from a more general Dic- tionary of English History. Until we obtain this it may not be amiss to attempt in a series of sketches to exhibit the separate growth of each great department of our Constitution. My second object has been to bring together some of the fresh work done within the last few years in this department of study, which as yet exists for the most part in scattered publications. The history of our Constitution was, for a long time, left to antiquarians and lawyers. But the rise of a class of scientific his- torical students has given an impetus to this branch of study also. The great work of Dr. Stubbs, no less than the contributions of Hallam and Sir T. Erskine May, will probably always be our starting-point ; but in the light of additional knowledge it seems that many of their conclusions require modification if not restate- ment. The masterly studies of Professor F. W. Mait- land in the social and political institutions of mediaeval England, and the illuminating treatises of Professor Dicey and Sir W. Anson on their present development, together with the work of many writers not professedly historians of our Constitution, seem to render it impor- tant to review the whole ground afresh. Perhaps the attempt is as yet premature. But since many of the accepted theories have already been profoundly altered, I have contented myself merely with stating as fairly as is consistent with the necessary brevity of a text- book, both the commonly received views and their recent modifications, without attempting, except very indirectly, to decide upon their respective merits. But I cannot pretend to have used, much less to have incorporated, more than a small portion of the mass of recent work. For various reasons the preparation of this book has been far more hurried than could have PREFACE vii been wished. At the same time it has grown to so great a bulk that I have been forced to omit the illustrative cases in Constitutional Law and extracts from documents, which in many points would have elucidated an otherwise obscure text. These it may some day be advisable to add in a supplementary volume. I hardly like to think how much, indeed how entirely, I am indebted to the work and the personal kindness of others. The former will be gathered from the side- notes on almost every page. Among those by whose personal assistance I have profited, I may perhaps be allowed to mention Mr. F. J. Haverfield, M.A., Student of Christ Church, who has given me indispensable help on the much debated question of our early debt to Rome ; the Rev. A. H. Johnson, M.A., Tutor of Merton College, who supervised the section on the Land Laws ; Mr. C. Raymond Beazley, M.A., Fellow of Merton College, and Mr. C. H. Firth, M.A., of Balliol College, who read over a large portion of the proof-sheets, and whose corrections have saved me from more than one mistake. But above all I am grateful to my friend and former pupil, Mr. Frank Morgan, B.A., of Keble College, w'ho read the whole of the book both in manuscript and in proof, took a large share in the compilation of the index, and was unflagging in the discriminative criticism to which he subjected every page. Finally, I cannot conclude without a reference to Mr. A. L. Smith, M.A., Fellow of Balliol College, who wall find numerous traces of those lectures on early English Constitutional History which have stimulated so many generations of students in the Oxford Modern History School. D. J. Medley. Oxford, June 1 894. PREFACE TO THE SECOND EDITION Since the original publication of this book important new readings have been given on more than one funda- mental point with which it dealt. Professor Maitland's previous work had laid all future historians of our early Constitution under a deep obligation ; but even so, students were scarcely prepared for the lavish suggestive- ness of TJie History of English Law and of Doviesday Book and Beyond. One of the chief aims of my compila- tion was to place within the reach of the young student the results of the most recent work. Consequently, whole sections have been re-written, and the views ex- pressed on many points have been largely modified. The generous criticism of friends, known and unknown, both in the press and in private communications, has been most valuable as a means of removing ambiguities and correcting actual mistakes. But I have been careful to keep the original plan, both in the general headings of the chapters and in the particular subjects of each section ; so that possessors of the first edition can easily test for themselves the changes made. These will be found chiefly in Chapters I, II, III, and VII, and in a minor degree, in Chapter VIII. In the other chapters, apart from a few additions, I have contented myself with an attempt to remove all possible obscurities of word or phrase. It cannot be pretended that these changes have PREFACE IX lightened the subject-matter ; but the demand for a second edition would seem to show that the book is found to serve a purpose. I have also ventured to add, with apologies to any legal readers, a few cases illustrative of important constitutional points, with which there was no opportunity of dealing fully in the text. The great length to which the book had already run forbade a more numerous selection. My indebtedness to Professor Maitland's published works will be apparent on almost every page. The Warden of All Souls most kindly supervised the section dealing with the judicial functions of the House of Lords, and to him the little note (p. 170) on the two modern courts of final appeal owes any clearness of statement which it may possess. Both the late Reader in English Law and the present Reader, quite unasked, sent me lists of suggestions for which I cannot be too grateful. Mr. C. G. Robertson, M. A., Fellow of All Souls, suggested a number of alterations with the object of making the book more useful to younger students. Some of these I have tried to carry out. To Mr. W. M. Harrison, M.A., B.C.L., Fellow of All Souls, I have with much profit submitted the contents of the Appendix. Finally, I would gratefully acknowledge the patient kindness of Mr. C. R. L. Fletcher, M.A., Fellow of Magdalen College, in reading through the proofs of the first half of this new edition, a thankless task which Mr. F. Morgan, M.A., again performed for me over the latter portion of the book. Oxford, /auuary 1898. NOTE TO THE THIRD EDITION This is rather a re-issue than, strictly speaking, a new edition. So much new matter was introduced on the second venture that it seemed well to minimize the changes lest the book should lose its identity for teachers already familiar with its original form. I have confined myself, therefore, to the insertion of recent statistics and to such verbal alterations as might clarify the text. D. J. M. Glasgow, Ap7'il 1902. b*Mi: ROMift-l, a^ TABLE OF CONTENTS INTRODUCTION § 1. Characteristics of the English Constitution DitTerence between Flexible and Rigid Constitutions Bases of the English Constitution in Law and Custom 2. Theories of the origin of the English Constitution . (i) Theory of absolute Teutonic predominance (2) Theory of Roman and Celtic survivals Qualifications of the pure Teutonic theory Difference between former and present points of contention Interpretation of the early land system in : (i) The Teutonic theory — The ' Mark System ' (2) The Romano-Celtic theory — The ' Villa ' . Conclusions ......... PAGE I 2 3 4 5 7 9 II 12 13 CHAPTER I §3. The Land and its Inhabitants The original settlements of the Anglo-Saxons Species of Tenures — (i) Folkland . The growth of a manorial system from above (2) Bookland (3) Loenland . The growth of a manorial system from below Social Ranks — Gesiths and Thegns . , 15 17 17 17 19 19 21 xj Xll TABLE OF CONTENTS The rise and development of Thegnhood Ceorls — The tuncsman or villanus _^. — Slaves ..... § 4. The introduction of Feudalism Feudal tenures — (ij Military — by knight service , by barony . (2) Serviential — by sergeanty (3) Spiritual — by frankalmoin (4) Other free tenures — socage Illustrations of these tenures (i) Growth of Primogeniture . (2) Divorce of Tenure and Personal Status (3) The incidents of feudal tenure . (i) (a) Relevium or Relief . (b) Auxilium or Aid (ii) (a) Custodia or Wardship {b) Maritagium or Marriage (ii?) Forfeiture and Escheat 5. The yl/a«cr— Meaning of the term . As an unit for various purposes . Common cultivation in the Manor Manorial officials ..... The holdings of the villan tenants The legal theory of villenage Classes of villans ..... Villan tenure . . ... The obligations of manorial tenants . Commutation of these obligations The test of free ^nd unfree tenure The origin of copyhold tenure yillan status ...... The extinction of villenage . 6. The growth. o/_a class of Yeoman Freeholders Common lands and rights of common . Enclosures ...... Their effect on (i) the landlord and the farmer The Corn Laws ..... (2) the labourers 7. The Land Laws ...... Methods of alienation — substitution and subinfeudation Early forms of alienation by gift . Restraints on alienation .... New methods of alienation — ( i ) Application of Warranty (2) Recoveries (3) Fines TABLE OF CONTENTS Uses ..... Th eabolil ion of feudal tenure The RIortmain Laws . Modern Strict Settlements . PAGE 66 68 69 70 CHAPTER II The Executive § 8. Gradual separation between Executive, Legislative, and Judicial powers. ....... 9. The Ciow)! — Its early elective title The growth and establishment of hereditary right Appointment by Parliament The modern title to the Crown . 10. The Royal Prerogative — Its gradual formulation Its definition under the Stuarts . The effect of the Revolution of 1688 upon Its present position {vide also p. 315) 11. Regencies — In absence from the kingdom In vacancy of tlie throne During a minority .... In the mental incapacity of the monarch 12. Relations between Sovereign and Subject — Allegiance The Law of Treason — its early history Edward Ill's Law and its defects . Remedies — (i) The action of Parliament (2) Temporary legislation . (3) The interpretation of the Judges (4) Statute law .... The procedure in trials of treason . 13. The King's Council — Curia Regis {vide also p. 119) Early Norman central organisation Curia Regis ad Scaccariiim .... Curia Regis de Banco ..... 14. The King's Council under Henry III Definition under Edward I. . . . . Its separation from Parliament under Edward III Its effect upon the position of the Judges in the House of Lords ........ Attempts of Parliament to control it . Its position as an instrument of the King . , ,^ ,, as a check upon the King . 72 73 74 76 77 77 78 79 80 81 82 82 83 85 85 86 87 87 88 90 90 91 91 92 94 95 -■ 95 I 96 I 97 I 98 98 I 98 XIV TABLE OF CONTENTS _ PAGE ' § 15. The Privy Council {vide also p. 447) ..... 99 Under the Lancastrians — power under control ... 99 V^ Under the Yorkists — revival of authority .... 99 Under the Tudors — extension of authority . . . .100 Its judicial activity — the Star Chawber . .... loi Its relation to the Privy Council ...... loi Its abolition 103 Its administrative work ........ 103 The origin of Secretaries of State . . . . .104 16. The Cabinet — Its origin under Charles II ... . 104 Temple's scheme ........ 105 Under William and Anne . . . . . . .106 Under the early Hanoverians ...... 107 Attempts of the king to keep a hold on it . . . . 107 The establishment of corporate responsibility . . . 109 Reluctance to acknowledge a Prime Minister . . . 109 The relations of the Cabinet to (a) the Crown . . .110 (h) the Commons . . . 1 1 1 17. The modern departments of Government . . . .112 The Treasury . . . . . . . . .112 Nominal Committees of the Privy Council . . . .113 The Secretariat (z'za't,' p. 104) . . . . . .114 Honorary offices which change with the Ministry . . 115 The Law Officers of the Crown . . . . . .115 The relations of the Cabinet and the permanent Civil Service 115 CHAPTER III The Legislature § 18. The IVitenagemot — Its origin Its connection with the folkmoot Its composition and powers 19. The Curia of the Norraan and I'lantagenet kings Its composition ...... The Commune Concilium .... The distinction between Majores and Minores Barones Its powers (i) counsel (2) legislation (3) taxation . (4) justice TABLE OF CONTENTS XV PACK § 20. The origin of Parliament — Tlie provision of Magna Carta . 127 The withdrawal of the Minores Barones from the Commune ConciHum . . . . . . . . .128 Their activity in local government ..... 129 Union of the ideas of representation and election . . 129 Attempted reforms of the Maj ores Barones . . . . 130 The Provisions of Oxford ...... 132 Simon de Montfort's schemes of government . . -133 Edward I's experiments in constitutional government . . 135 Change of the three Estates into two Houses of Parliament . 137 21. Transformation of the Commune Concilium into the House of Lords . . . . . . . . . .138 The Qtialifications of the lay members of the House of Lords 138 (i) Tenure by barony ....... 139 (2) The receipt of a special summons . .... 141 (3) Letters Patent ........ 143 Life Peerages ......... 144 The Spiritual Estate in Parliament . ' . . . . 145 Qualifications of the Spiritual Lords . . . . .145 Reasons why the Spiritual Lords did not obtain privileges of peerage ......... 147 The position of the Spiritual Estate in Parliament since the Reformation ........ 148 Abstention of the lower clergy from Parliament .■ . . 148 Results of their abstention . . . . . .150 22. Growth of the idea of Peerage . . . . . .150 The doctrine of ennobled blood . . . . . -153 Its effect on the status of Spiritual Lords in Parliament . 155 The effect of the Unions of Scotland and Ireland on the House of Lords . . . . . . . . .156 Increase of the numljer of the House of Lords . . .157 Alterations in the House of Lords — actual and suggested . 159 23. The yV<;7.fa'/i"/'/£i« of the House of Lords . . . . 161 (i) Original jurisdiction — Impeachment .... 162 Attainder ......... 164 The power of impeachment secured . . . .164 The decline of impeachment ..... 166 Other original jurisdiction ...... 166 (2) Appellate jurisdiction ....... 167 The four Law Lords of Appeal ..... 168 24. The /Viz^z/f^ifj- of the House of Lords ..... 168 Note on the Courts of Final Appeal . . . . .170 XVI TABLE OF CONTENTS CHAPTElt IV The House of Commons — Its Form § 25. The Members of the House of Commons Their number in the shires ..... ,, ,, in the boroughs ..... 26. The amalgamation of the shire and borough members Qualifications of (i) ' belted knights' for the shires ,, (2) 'gentlemen born' for the shires The early weakness of the boroughs in Parliament (3) Local residence — rotten boroughs . (4) Property ..... (5) Oaths and declarations . 27. Disqualifications — (i) Mental ..... Resignation of a seat in the House of Commons — Th Chiltern Hundreds ...... (2) Social — Aliens : Peers (3) Official — Lawyers : Judges : Sheriffs Clergy (4) Governmental .... (5) Legal — bankruptcy : corrupt practices treason ..... 28. The Elect07-ate in the shires ...... (i) Before 1430 — the constituent members of the Shire Court (2) Between 1430 and 1832 — the forty-shilling freeholders (3) Since 1832 29. The Electorate in the boroughs ..... The theory of representation in Ancient Demesne The burdensomeness of representation {vide also p. 202) Influences which narrowed the borough constituencies . Qualifications before 1832 ...... ,, since 1832 ...... 30. Outside influences upon Parliament — (i) The Sheriff Methods of escaping representation in the shires . Influence of the Sheriff on shire elections . ,, ,, borough elections Methods of escaping representation in the boroughs 31. (2) The Crown ........ 'Methods of the Plantagenets and Lancastrians li ,, the Tudors I ,, the Stuarts — their failure to control Parliament \ „ the Hanoverians — Parliamentary corruption TABLE OF CONTENTS X\li § 32. Payliaiiienta>y Reform— {a) before 1790. The Schemes of Chatham, Wilkes, Richmond, and Pilt (,b) 1 790- 1 797 ('") 1 797- 1 820 {d) 1820-1832 {/) Since 1832 The representation of minorities — Three-cornered constitu encies ; Proportional representation. . 220 223 223 223 226 228 CHAPTER V The House of Commons in Action § 33. The growth of the power of the House of Commons — (I) in taxation ........ Direct attempts to obtain control over (i) direct taxation ,, ,, ,, ,, (2) indirect taxation The early settlement of the Customs Their increase under the Tudors and Stuarts . The quarrel over Tunnage and Poundage The Customs after the Restoration .... Other forms of indirect taxation — Commissions of Array Distraint of Knighthood ..... Indirect methods of obtaining control over taxation (i) Redress to precede supply ..... (2) Appropriation of supplies ..... (3) Audit of accounts ...... 34. (II) In Legislatioji ....... Treatment of the Commons' petitions by the Crown The Commons' measures of defence .... Hindrance to the Commons from (i) the attitude of the Lords (2) the organization of the clergy in Convocation (3) the use by the Crown of (i) Ordinances Proclamations — Under the Tudors Under the Stuarts Their modern use (ii) The dispensing power (iii) The suspending power 35. (Ill) \n general admijiistrative control .... (i) Foreign politics ....... (2) The action of the law courts .... 23 r 232 234 234 235 236 238 238 239 239 240 241 242 243 244 245 246 246 247 249 250 251 251 253 254 25s 256 XVIU TABLE OF CONTENTS § 36. The Commons protect themselves against the Crown by (l) Fixing the meeting of Parliament The Diij-ation of Pai-liamcnt The Triennial and Septennial Acts . 37. (2) Asserting the Privileges of Parliament Freedom from arrest ..... Extensions of the privilege Exceptions to the privilege Means of enforcing the privilege Freedom of speech ..... Its extension to (i) exclusion of strangers from debates ,, ,, (ii) restrictions on publication of debates The limits to the privilege ..... 38. (l) Regulation of the Constitution of the House by — (i) Declaration of the incapacity to sit ... (ii) Expulsion for unworthy conduct ... (iii) Trying contested elections .... (2) Exclusive cognizance of everything within the House Conflicts between the Commons and the Law Courts (3) Punishment for the violation of privileges 39. Relations of the Commons and the Lords Their original attitude ...... Change in their mutual attitude ..... The Commons monopolize taxation .... The Lords deprived of (a) initiation (3) amendment (c) rejection The Commons' share in legislation .... Methods of overcoming the opposition of the Lords — (1) persuasion ....... (2) coercion ....... The Commons' interference in the judicial action of the Lord 258 258 259 260 261 262 263 264 264 267 269 270 272 272 273 274 275 277 278 279 279 279 279 280 280 281 281 282 283 CHAPTER VI The Executive and Legislature in Conflict § 40. Struggle of the Executive against the disruptive tendencies of (a) Provincial feeling — before the Norman Conquest . Position of the Anglo-Saxon king under the Normans — William I's measures 285 286 287 TABLE OF CONTENTS XIX policy (6) The claims of the Church — William I's ecclesiastical policy ....... ;y (c) Feudalism — Henry I and Henry H's anti-feudal Edward I's formation of a national legislature § 41. Relations between the Executive and the Legislature Early predominance of the Executive . Triumph of the Legislature (1399-1437) Causes of its ultimate failure .... 42. Triumph of the Executive (1437-1588) . The Executive under the Tudors The Legislature under the Tudors Transition from the Tudors to the Stuarts . 43. Struggle between the Executive and the Legislature (1603 Its character ....... 44. The constitutional lessons of the Commonwealth , The settlement of the Restoration 45. The constitutional results of the Great Rebellion (1660-168S) The causes of the Revolution of 1688 . (i) The insecurity of individual liberty . (2) The attack of the Crown on the Church 46. Final Triumph of the Legislature secured by — (i) The break in the succession . (2) The settlement of the revenue (3) The appointment of the Judges (4) Cabinet government {vide also p. 104) Results on the Royal Prerogative (vide also p. 80) . 1642 287 289-r 292 293 293 294 29s ' 29r 299 299 301 302 303 305 307 308 309 309 310 312 312 313 313 315 CHAPTER VII The Administration of Justice 47. [ The English Common Law administered by — (A) National Courts — The Hundred .... The usual theory of the early origin of the Hundred Presumptive evidence for its early existence Other local divisions — Lathes, wapentakes, &c. Other explanations of the origin of the Hundred The work of the Hundred Court The Hundred as an unit of financial liabilities The Shire — its origin . Ealdormen .... Changes produced by the Norman Conquest (i) Disappearance of the Ealdorman . Counties Palatine . 318 319 320 320 321 323 326 327 328 330 330 330 XX TABLE OF CONTENTS (2) Supremacy of the Sheriff .... Extent of his jurisdiction . Meetings of the Shire Court The Sheriffs Tourn .... Its procedure ..... (3) Direct intervention of the Crown by (a) The monopoly of criminal justice — Pleas of the Crown ....... (/;) The evocation of causes to the Curia Regis (f) Arbitrary amercement. .... § 4.9 (B) Private jurisdictions ...... The origin of seignorial jurisdiction — ' sake and soke The effect of the Norman Conquest on their development Distinction between Manorial Court Leet and Court Baron ......... Distinction between Court Baron and Court Customary 50. The supersession of the local courts by the King's Courts Classification of crimes in mediaeval law . Early methods of judicial procedure . 51. Changes in the judicial procedure made by the Normans (i) The introduction of Trial by Battle (Duellum) (2) An extension of the use of writs . (3) Trial by Jury — Its origin .... Its development . The meaning of ' seisin ' Proprietary and Possessory Assize The 'Exceptio' . The jury as witnesses . The Jury of presentment — The ' Grand Jury ' The beginning of the Petty Jury The survival of old methods of procedure . 52. The Itinera7it Justices — Their origin Beginning of the system under Ilcnry I Formulation of the system under Henry II . _ Their commissions separated and consolidated . 53. The three Courts of Common Law The Court of Common Pleas .... The Court of Exchequer ..... The Court of King's Bench .... % The Court of Exchequer Chamber . 54. The Forest Courts . . . The Forest Law ...... 55. The results of the concentration of Justice in the King's Court (l) The decay of the local courts The constituent members of the local courts TABLE OF CONTENTS The decline of the Sheriff's authority . The decline of the competence of the local courts (2) The Common Law becomes a written law § 56, (3) The rise of the jurisdiction of Chancery The early history of the Chancellor . Chancery becomes a separate court Chancery gets separate jurisdiction Its contest with the Common Law Courts The chanse to its modern form . 375 377 377 378 378 379 380 381 382 CHAPTER VIII Police and Local AD^rINISTRATION 67. The early system of Police — Frith : Grith : Mund (i) Oath for maintenance of the peace (2) System of suretyship and registration Responsibility of the kin . Responsibility of the lord . Responsibility of a group . (3) Frankpledge — the Tithing . (4) Murdrum . . ' . (5) Regulations about vagrants {vide also pp. 405-407 (6) Watch and Ward, and Hue and Cry 58. Justices of the Peace — their origin and early history They gradually supersede the Shire Courts . Their method of appointment and their qualifications The ' quorum ' . The powers of a single Justice . The work of Petty Sessions The duties of Quarter Sessions . The effect of the County Council on the duties of Justices County Courts for civil purposes . Local Courts of Record .... Control over the Justices .... 59. The Vill or Township ..... Its duties and liabilities .... Their apportionment among the inhabitants The Vestry The Poor Law ...... (i) Before 1601 Mediaeval poverty .... Its gradual increase Early legislative attempts to check it (1388- 1536) The consolidation of the early Poor Law (1536-1601) 384 385 385 385 3S7 387 387 390 391 391 392 393 394 396 397 398 399 399 400 400 400 401 402 403 403 404 404 404 405 406 407 XXll TABLE OF CONTENTS PACE (2) The administration of the Poor Law (1601-1834) . 409 (a) The laws of settlement ..... 409 (d) Increased power of the Justice . . . .410 (r) The Workhouse Test 411 (d) Law of Bastardy . . . . . .412 Results of the modificalions in the principles of 1601 413 § 60. The Modern Poor Law since 1834 414 Its development . . . . . . . .415 New areas of local administration — the Parish Council . 417 61. Borotighs .......... 418 The Anglo-Saxon burh . . . . . . .418 (a) Military 4^9 [b) Commercial ........ 420 {c) Jurisdictional ........ 420 Establishment of the distinction between a borough and a vill 422 The effect of the Norman Conquest on the towns . . . 423 Their efforts for self-government ..... 423 (i) Under the Norman Kings . ..... 423 (2) Under the early Plantagenet Kings .... 424 The beginning of the corporate idea ..... 426 The Municipality and the Merchant Gild . . . 428 62. The Craft Gilds 429 The growth of an oligarchy in the towns . . . .431 Boroughs made into Shires ...... 433 The modern Corporation ....... 433 The judicial constitution of boroughs ..... 433 CHAPTER IX Liberty of the Subject § 63. Personal liberty in England and elsewhere Its security in England . History of the Writ of Habeas Corpus Its e%'asions ' per speciale mandatum regis ' Case of Darnell (1627) The Habeas Corpus Act (167^) The gradual remedy of its defects Its constitutional importance Its occasional suspension . 64. Methods of violating the liberty of the subject (a) General warrants . Case of Wilkes (1763) 434 436 436 437 438 440 441 441 442 443 443 443 TABLE OF CONTENTS xxni (d) Imprisonment of debtors .... (f) Negro slavery — Sommersctt's case (d) Restrictions on foreign settlers {vide also p. 521) § 65. Methods o{ repressing the expression of freedom of opinion (a) Control by the Star Chamber {vide also p. loi) {J)) Spies and informers {c) Opening private letters . -^d) Censorship of the Press until 1695 {e) Stamp duties (1712-1855) (/") 'Yhn law of libel . Its developments in the eighteenth century 66. {g) Dependence of X\\q Judges on the Crown Their natural tendency to uphold authority Their treatment by the Stuarts . Sir Edward Coke — his resistance to the Crown The Judges since the Revolution {h) The liabilities of the Jury 67. The Army (i) The Anglo-Saxon Comitatus The Feudal Levy The unit of military service — The knight's fee The disadvantages of the Feudal Levy The question of the liability to foreign service Attempts to modify the Feudal Levy (rt) Oath of Salisbury (1086) (b) Scutage . . . . (<") Quota ...... {d) Amalgamation with the Fyrd . [e) Distraint of Knighthood . 68. The national Militia — The Anglo-Saxon Fryd Changes at the Norman Conquest Its reorganization by Henry II— The Assize of (1181) Commissions of Array .... The modern Militia ..... The modern Volunteer force and the Yeomanry 69. Mercenaries — The employment of foreign mercenaries The modern standing army .... Mutiny Act (1689)— Army Act (1881) Martial Law ....... The legal position of soldiers .... Methods of raising an army ( i ) Impressment (2) Voluntary enlistment The government of the army .... 70 The Navy . . . ... Arms 444 445 446 447 447 448 449 449 450 451 451 453 453 454 456 458 460 461 461^ 462 ' 462 I 463 464 464 464 465 465 466 466 467 468 469 470 472 473 474 475 475 477 478 479 479 480 XXIV TABLE OF CONTENTS §71. Methods of manning it (i) The obligations of Cinque Ports (2) The impressment of merchant ships . . . . . The formation of a naval reserve {3) Voluntary enlistment The government of the navy Popular methods of influencing the executiv (i) Petitions to Crown or Parliament . (2) Public meetings .... (3) Political associations . CHAPTER X Revenue and Taxation § 72. The early distinction between revenue and taxation The demand ' that the king should live of his own ' (i) The hereditary revenues of the Crown . The Crown Lands or Royal deiitcsne Their relation to ordinary expenditure . Attempts to checks their lavish grant 73. (2) Fees and Fines from the royal prerogative The profits of justice — Frydwite — Oferhyrnes Purveyance ....... Feudal dues ....... Substitutes for the feudal dues (a) Excise on beer {f)) The Post Office 74. The modern Civil List — its gradual growth 75. Early forms of taxation .... Danegeld ...... Changes under Henry II — Class Taxation Scutage {vide also p. 465) . Donum, Auxilium, Carucage Tallage .... 76. National Taxation Temporary — Poll Tax Hearth Money Permanent — Direct . Tax on Moveables . Tenth and Fifteenth (1332-1624) Subsidy (15 14- 1664) Monthly Assessment Land Tax Income Tax . TABLE OF CONTENTS XXV § 77. Indirect — Customs duties Parliamentary control over them Tunnage and Poundage {vide also p. 236) The position of foreign merchants in England — The Ilansa The merchants of the Staple Regulated Companies 78. Later history of Customs duties The mercantile system The establishment of Free Trade 79. Excise — Its origin ..... Extension of the term to imported articles ,, ,, licences Stamp duties ..... Summary of revenue and taxation . 80. Loans ....... The Jews in England — Usury Foreign merchants .... The regulation of interest for loans The origin of banking in England — The Goldsmiths The Bank of England The National Debt .... Methods of raising it . . . Attempts to reduce it . . . 81. The system of national expenditure Collection of the revenue and taxation History of the system of control of expenditure Present system of control .... 517 519 520 521 522 523 523 525 526 527 528 529 530 531 532 532 534 535 536 537 539 540 542 544 544 544 546 CHAPTER XI The Church § 82. The Church as an organized body .... Classes of Churchmen ..... (1) Bishops — growth of the episcopate {vide also p, (2) Secular clergy — early parochial organization ,, ,, impropriation of the tithe . Chantry priests ...... (3) Regular Clergy — {a) Monks Before the Norman Conquest After the Norman Conquest . The introduction of new Monastic Orders (b) Friars ....... 145) 547 547 547 549 550 550 551 551 552 552 554 XXVI TABLE OF CONTENTS § 83. Government of the Church before the Reformation . Ecclesiastical Councils ...... Early provincial and diocesan synods The growth of Convocation ..... Differences between the Clergy in Convocation and in Parliament ....... 84. Ecclesiastical Courts ....... Under the Anglo-Saxons ...... After the Norman Conquest ..... Ecclesiastical Law ....... The extent of the Ecclesiastical Jurisdiction . The punishment of heresy ...... 85. Connection of the Church and the State before the Reformation The Royal Supremacy ....'.. The appointment of Bishops ..... Benefit of Clergy ....... Clerical self- taxation ....... Ecclesiastics in lay office ...... 86. Ititerference of the Papacy in — {a) The appointment of Bishops .... {b) The encouragement of appeals .... (c) The system of provisions and reservations {d) The appointment of legates ..... ((?) Exactions of money ...... 87. The effect of the Reformation on the Church as an organized body ......... The Bishops ........ The lower clergy ....... The suppression of the monasteries .... 88. Convocation after the Reformation .... Its action in the Reformation ..... Its position towards the Crown ..... The Ecclesiastical Courts after the Reformation The Court of High Commission ..... The reduction of the power of the ecclesiastical courts The connection of Church and Slate after the Reformation The Royal Supremacy — under Henry VIII ,, ,, under Edward VI . ,, ,, under Mary .... „ ,, under Elizabeth ,, ,, under the Stuarts . before the Great Rebellion after the Restoration . ,, ,, since the Revolution of l688. 91. The growth of religious toleration . .... 89. 90. TABLE OF CONTENTS XXVll Attitude of the government towards {a) Roman Catholics {d) Protestant Noncon formists The disabiUties of Roman Catholics — Before the Great Re bellion ,, ,, ,, After the Great Re bellion Early relaxations of the penal code in England The disabilities of Roman Catholics in Ireland Relaxations Catholic Emancipation The disabilities of Nonconformists Relaxations by (a) Connivance {d) Repeal Separate treatment of Quakers, Unitarians, and Jews PAGE 594 594 596 598 600 602 603 604 605 606 608 610 APPENDIX Some Important Cases in Constitutional Law Ashby z'. White (1704) 613 Barnardiston v. Soame (1674) . . . . . . .614 Buckinghamshire Election (1604) ....... 616 —Bushell's case (1670) 615 Calvin's case (1608) ......... 615 •'— ^ntick z/. Carrington (1765) ........ 625 ^"Goodwin and Fortescue (1604) ....... 616 Hampden's case (1637) ......... 617 Howard z/. Gossett (1840) ........ 623 Leach z/. Money (1765) 625 Prideaux z*. Morris (1702) . . . . ' . . . , 614 — ^even Bishops' case (1688) . . . . . . . .619 Sheriff of Middlesex' case (1840) ....... 623 Shirley's case (1604) ......... 620 ~ — Stockdale z'. Hansard (1839) ........ 622 ""■"— Wilkes' cases — (i) The North Briton {i^dT^) . . . . . 623 (2) The Middlesex Election (1768) . . . . 625 /y ABBREVIATED REFERENCES TO AUTHORS AND BOOKS USED THROUGHOUT THIS VOLUME. Referred to as Anson, Sir W. , Law and Custom of the Constitution (vol. i. 3rd edition, vol. ii. 2nd edition) . . Anson. Broom, H., Constituliotial Law (2nd edition by Denman, 1885) Broom. Dicey, Prof. A. V., Law of the Constitution (5th edition) Dicey". DowELL, S., History of Taxation atid Taxes in England Dowell. English Historical Review . . . . . . E. H. R. Gardiner, S. R. , History of England from the accession ofJa»iesI{io\o\s.) ..... Gardiner. Constitutiojtal Documents of the I^uritan Revolution Const. Docts. Gee, Rev. H., and Hardy, W. J., Documents Illustrative of Etiglish Church History .... Gee and Hardy. Hallam, H., Constitutional History of England (3 vols. cr. 8vo. 1S76) Hallam. Lecky, W. H., History of England in the Eighteenth Century (8 vols. 8vo. 1878-87) . . . Lecky. Maitland, Prof. F., Domesday Book and Beyond. . Domesday. May, Sir T. Erskine, Constitutiottal History of England (5th edition. 3 vols. cr. 8vo. 1875) . . Erskine May. Pike, L. O. , Constitutional History of the House of Lords Pike. Pollock, Sir F., and Maitland, Prof. F. W., History of English Law (1st edkion) .... P. and JIL Prothero, Prof. G. W., Statutes and Constitutional Documents, 1559-1625 Prothero. Report of the Ecclesiastical Courts Commission . . E. C. C. Stubbs, Bishop W., Co7istitutional History of England S. C. H. Select Charters . . . . . . S. C. Thayer, J. B. , Development of 7>ial by fury (Boston) . Thayer. Thomas, E. C., Leading Cases in Constitutional Law (2nd edition) Thomas. ENGLISH CONSTITUTIONAL HISTORY INTRODUCTION § I. Among systems of government the English Consti- Character- tution holds a pre-eminent place; for it is the result of '^^'^^.°^^'^'^ a practically unbroken development of thirteen hundred years. Constitu- Perhaps for this reason among others, during the last century tion. and a half it has been freely copied. Nearly every progres- sive nation of the world now possesses a system of government by an executive of ministers and a deliberative body of two chambers. It may be said, without fear of contradiction, that this form originated in England ; and its prevalence throughout Europe and America is the result of conscious imitation. But there is this one great difference between the original and all the imitations— that, whereas all foreign constitutional govern- ments sprang Minerva-like from the brain of the legislator, the English Constitution is the result of forces and influences which have been at work for thirteen successive centuries ; and while we can, by reference to a written document, gain a sufficiently accurate acquaintance with the governmental method of most foreign parliamentary constitutions, our knowledge of our own constitutional arrangements has to be sought as much in customs as in definite law. The results are so important as to excuse, and indeed to necessitate, a further examination. A Constitution has been defined as the product of 'all rules. Flexible which directly or indirectly affect the distribution, or the ^"^ "^"^ exercise of the sovereign power in the State.' ^ It might justly tions. be thought that such rules in each particular country would be ' Dicey 2-> 2 ENGLISH CONSTITUTIONAL HISTORY as infinitely various as is the history of each country from that of any other ; but, as a matter of fact, the sum total of such rules may be distinguished into two classes. The dividing line is to be found in the method by which any fundamental change may be carried out in the structure of the Constitution. Thus in our own English system, any change, whether great or small, whether fundamental or merely corrective, is carried out by the process of ordinary legislation. To such a Consti- tution, of which as yet England is the sole example, the epithet Flexible has been applied ; and in such a Constitution the Parliament or legislative body is of necessity the sovereign power, for there is nothing to hinder it from changing or annulling at will all the laws of the commonwealth. All other parliamentary constitutions have been conveniently labelled as Rigid, inasmuch as the whole or some part of them can be changed only by some extraordinary method of legislation. For they spring from a written document, in which the sove- ' Anson, i. reign power may be said thenceforth to repose.^ Thus there is 34- a difference between a legislative and a constituent assembly, such as has only twice been realized in England, at the epochs of the Restoration and the Revolution ; and there is a marked distinction between fundamental laws which can only be touched by a constituent assembly, and ordinary laws which fall within the competence of the ordinary legislature. Results of From the division between these two kinds of Constitution the differ- j-j^gj-g follow three noteworthy results. In the first place, the rights of individuals are gimrafiteed, in a rigid Constitution, by a fundamental article in the Constitution ; whereas in the flexible Constitution of England they depend on the indirect, but no less sure, safeguards of judicial decisions and specified legal remedies. Again — and perhaps as a necessary consequence of this difference — beyond the fundamental laws strictly so called, the founders of all rigid Constitutions have been irresistibly tempted to fill them with a number of articles which merely state advantageous maxims of policy unsecured by any guarantee ; whilst the piecemeal growth of the flexible Consti- tution of England has insepaiably connected the means of '- Dicey, enforcing a right with the right itself.- Finally, the term un- '90- constitutiof/al undergoes a change according as it is applied to an act or law under a flexible, or under a rigid Constitution ; ence. INTRODUCTION 3 for, whereas in England it implies something that is opposed to the spirit of the Constitution, but brings no immediate penalty with itself; in a country under a rigid documentary Consti- tution, the unconstitutional act of an individual or of an assembly is one either beyond the competence of those who commit it, and so ipso, facto void, or which incurs a punish- ment affixed to it in the written articles of the Constitution. In such a case the terms ' unconstitutional ' and ' illegal ' are identical. This distinction will explain the meaning of the boast that P^ngland is governed by an imw7-itteti Constitution. But it does not follow that the English Constitution has no Bases of bases. Indeed, although it will be found that in one sense of ^^^ English the term the taunt of a foreign writer is true, that we have no ^^^^ Constitution ; ^ yet we may look in two directions for the 1 p^ -p^^, guarantees of the ordinary action of our machinery of govern- queville; ment. In the first place, an important part of the ordinary qi;oted in law of the land is formed by what is called Public or Consti- tutiotial Law, which, consisting (like the rest of the Common law) of parliamentary statutes and of judicial decisions based upon precedents, is merely for convenience distinguished from Private Law which governs the relations of individuals to each other : for, both alike are enforced by the ordinary courts of law. The more impalpable part of the English Constitution, and that which marks it off more clearly from rigid Constitutions, is contained in the Conventions of the Constitutioti. These are prac- tices or rules, with which the law^ courts immediately have no concern, but whose object it is to ensure the harmonious .working of the various members of the sovereign body, the Crown-in- Parliament. It is these informal understandings alone which for two hundred years have prevented the exercise of the royal veto on bills passed by Parliament ; which have caused the House of Lords to yield to the clearly expressed wishes of the nation, and which ensure the resignation of a ministry when it has been defeated on an important vote in the House of Commons. Nor is this all ; for, while it would seem at first sight as if Connection the only guarantee for the maintenance of these understandings t^g ^^w could be found in a powerfully expressed public opinion,. a little and the reflection will show that they are merely as it were a first line of Customs of defence, and that in the end their violation involves a conflict stitution. 4 ENGLISH CONSTITUTIONAL HISTORY ^ Dicey, with the law.' 'I'hus the repudiation of the eonvention in any ■^9- one of the three cases stated above, would result in the refusal of supplies by the House of Commons, which could only be obtained by the king and the ministry through other than legal means. So true is this within certain limitations, that the difference between rigid and flexible Constitutions seems to resolve itself merely into a difference between an immediate and an ultimate appeal to the law. In the two cases, however, the functions of the law courts are to be carefully distinguished. In a rigid Constitution it is within the power of the judges to treat as unconstitutional, and therefore illegal, any act of the executive or legislature which is at variance with the written articles of the Constitution ; whereas in England the judicial bench can only decide whether the deeds of individuals are illegal or a violation of the letter of the law, although sub- sequent legislation can destroy the value of such decision as a precedent. The Roman § 2. The English Constitution then, or the system and or Teutonic institutions under which we are governed, is a growth and not the^Fnelish ^ manufacture ; and, consequently, more than in the case of Constitu- any other nation, its history is expressive of the character and tion. development of the people who possess it. But it is possible to exaggerate the divergence between the course of English history and that of the kindred nations of the continent. However great the later differences may be, the English tongue, if not the people, was originally of that same so-called Aryan type which is common to most of the European nations, as well as to large portions of the Asiatic world. To it belonged alike the Celtic peoples of the Gaels and Britons, and the Teutonic tribes, which in succession occupied this island. Again, no less than the rest of Western Europe, Britain passed under 48-410. the Roman yoke, and for three and a half centuries formed a province of the Roman Empire ; while in the train of the legions ultimately came that Christian faith which formed so strong a leavening and binding influence among the pro- gressive nations of the world. But for some years it has been an accepted truth among English historical students, that the only cataclysm of which our history has to j^ll, began with the arrival on the shores of Britain of those Teutonic tribes whose descendants undoi^btedly form the stai)le portion of the INTFLObUCtlON 5 population in modern England. This theory has not gone without challenge either in the past or at the present day. Its acceptance or rejection makes the history of the previous in- habitants of this island either a piece of pure antiquarianism or an important element in the formation of our present life. The two preliminary incursions by Caesar (b.c. 55 and 54) into Britain, with which its history begins, were followed after an interval of nearly a century by renewed invasions, ending in the conquest of the southern portion of the island and its The Con- occupation for 360 years. The ordinary Roman organization quest of with a staff of the customary officials was introduced, and the different parts of the country were connected by great roads. But Britain lay too far away to feel the effect of Roman colonization. The imperial rule was little more than a military occupation ; and, so far as evidence remains, it affected a handful of towns, whether municipia, of which there is only one known example, or coloniae, which numbered at least four. Outside these two sets of organized bodies, which differed in little save in name, lay the districts which probably continued in the possession of native tribes ruled by their chiefs, retaining their own language and, at any rate at first, their own customary law. The compulsory withdrawal of the Roman legions at the beginning of the fifth century left the country a prey to internal factions. The antagonism between the Romanized dwellers in the towns and the native popula- tion of the country districts has probably been overstated ; and the theory that when the latter welcomed the incursions of their more than dubious kinsmen, the Picts, the former summoned the Saxon pirates who were already familiar with the coast, seems to be based on no reliable evidence. Both invaders, however, did come ; and the plundering raids of the Saxons gave way to systematic invasion, and, finally, to a con- quest which did not cease until, a century and a half later, it had placed the conquerors in possession of all Eastern Britain south of the Forth. Here the different interpretations of the effect of this con- The theory quest part company. Of late years it has been asstaned that^,^^^.'^^ the English coiiquesiof Britain was to be distinguished sharply predomin- froni the conquest of ^fUul by the kindred tribes of the Franks ; for, ^^nce. whereas in the latter case the Romanized inhabitants of Gaul 6 ENGLISH CONSTITUTIONAL HISTORY gave to their new conquerors far more than they received from them, it is held that in Britain alone the imperfect extent of the Roman civilization on the one side, and, on the other, the irre- concilable attitude of the Britons towards the new comers, resulted in a tvar of practical extermitiation by the Saxons, which in the end left behind none of the Romano-Celtic civilization to affect the settlers. ' Everywhere but in Britain,' Mr Freeman tells us, ' the invaders gradually adopted Chris- tianity . . . gradually learned to speak some form, however corrupt, of the language of Rome . . . respected the laws and the arts of Rome . . . and the local divisions, and 1 Norm. the local nomenclature survived the conquest.' ^ In Britain, Conq. 1. i6. ^^^ ^^ contrary, 'the English wiped away everything Celtic as well as everything Roman as thoroughly as everything Roman was wiped out of Africa by the Saracen conquerors ■- Ibid. i. 2o. of Carthage.' - As a result, the English retained their heathen w^orship, and owed their subsequent conversion to Christianity to other sources than the surviving and attenuated British Church : they retained their language almost free from any intermixture of Roman or Celtic words, until the conversion brought in a certain number of words of ecclesiastical Latin : ' the vestiges of Romano-British law,' says Dr. Stubbs, ' which have filtered through local custom ^ S. C. H. into the common law of England . . . are infinitesimal' : ^ 'no § 28. dream of ingenious men,' says Mr Freeman again, ' is more groundless than that which seeks to trace the franchises of English cities to a Roman source ' ; and finally, the ' local ■* Norm. nomenclature is everywhere essentially Teutonic' ^ As a reason Coiiq. i. 17. for this clean sweep it is pointed out that least of all the Teutonic tribes had the invaders of Britain previously come into contact with the Roman Empire. Thus no terms were kept between them and the inhabitants of the island. For 450-600. one hundred and fifty years the English waged a war of practical if not literal extermination. The Britons fled before their conquerors to the western side of the island, and So complete was the separation between the two peoples, that 1-07. when, a century afier the first settlement, Augustine came with his gift of (Christianity to the English, the British Church remained aloof and refused to help him in his work. On this land, so cleared of ks former inhabitants and their civilization, Introduction i the English tribes settled down and reproduced in all essential details the life of their society as they had lived it in their previous homes. For, ' conquest under the circumstances,' says Dr. Stubbs, ' compelled colonization and migration . . . the invaders came in families and kindred, and in the full organization of their tribes . . . even the slaves were not left behind. The cattle of their native land were, it would appear, imported too.' ^ Thus Mr. Green contends that ' the settle- ^ .S". C. H. ment of the conquerors was nothing less than a transfer of§3i- English society in its fullest form to the shores of Britain. It was England that settled down on British soil' y and although "- Making; with Dr. Stubbs again, 'it is unnecessary to suppose ^^at ^-^^^^"■^' a migrating family exactly reproduced its old conditipns,' yet it is substantially true to say that ' the new life started at the s 5 q^ //, point at which the old had been broken off.'^ § 3i- To this reading of early English history the advocates of the The theory continued existence of Romano-Celtic influences give a flat °f |^°'"''^P 1 • • • ^1 L 1 and Celtic denial. Accordmg to their contention, it was through the survivals. Romanized Celts that the civilization of the previous in- habitants chiefly, though not entirely, reached the new con- querors. The whole evidence produced by the upholders of this opinion, goes to rebut the theory of the exceptional character of the E)igUsh invasion of Britain. They deny not only the possibility but the fact of the extermination of the Britons, and assert in the most uncompromising manner the unavoidable intermixture of the Britons and their conquerors, and the consequent far-reaching effect of the Romanized institutions of the former, on whatever Teutonic organization ' was brought in the keels of the invaders.' The evidence for ' this is drawn from many sources. Of these, the most direct is afforded by the language of the invaders. Instead of the ' few Celtic, and the still fewer Latin words ' which ' found their way into English from the first days of the conquest,' '*"' ^"'w- and which form two very small exceptions to the purely Low ° "^' Dutch character of the English language, it has been main- tained that ' hundreds of common words ' relating not merely to domestic employments (such as would be transmitted by the female slaves, who alone are generally allowed to have been saved from extermination), but even to government, ' may still be traced in the limited Anglo-Saxon and Welsh voca- 3 ENGLISH CONSTITUTIONAL HISTORY ^ Pearson, Hist, of Eng. i. 1 02 - Brewer, English Studies, 64-74. ^ Scarth, Roman Britain, 225. •» Hist, of Eng. i. 103. bularies ' ; while rather more than a hundred Latin words, often to be found also in Welsh, prove the abiding influence of the Roman tongue. The retention of Celtic words also in relation to ' the arts of weaving, boat-building, carpentry, and smith's work,' ^ would seem to show that the invaders accepted the teaching of their captives in some of the more skilful " occupations. But besides this practically direct evidence, it has been conjectured - that a resistance which was sufficiently stubborn to protract the conquest for 150 years, would tell in favour of a compromise rather than of wholesale extermination. Christianity did not come to mitigate the fury of the invaders until the conquest was nearly accomphshed ; but the method of its introduction into Kent and its immediate success seem to argue that the ground had been prepared by a continued exercise of the rites of worship in the old church of St. Martin which was set aside for the use of iEthelberht's Christian queen. It has even been asserted that Celtic missionaries lent their aid to Augustine and his followers in their labour of conversion. And if continuity can be traced in the language, the religion and the arts of the days of the Roman occupa- tion, it may well be believed that the Roman organization, both social and political, would not perish. Thus it has been asserted -^ that Roman territoria, which hypothetical ly followed the boundaries of the British tribal lands, were presided over by an official called the comes civitatis, and that in these are to be found the origin of the small kingdoms of the Heptarchic period, and, therefore, ultimately of the English shire, together with that of the Anglo-Saxon ealdorman. But while all this remains no more than mere assertion, some evidence has been adduced in favour of the continued life of lesser organizations, whether the villa or private estate, cultivated by a bailiff and servile tenants, or (less conclusively) the municipiu7n with its collegia, which became the English burh with its gilds. Under these circumstances it would almost naturally follow that ' Roman law has formed the basis of the Saxon family system, and of the laws of property'; while the only possible conclusion would be with Mr. Pearson that ' the Saxon Conquest . . . did not break up society ; it only added a new element to what it found. The Saxon state was built up on the ruin^of the past.'** INTRODUCTION 9 Such are the two diametrically opposite interpretations ofQualifica- the evidence as to the early history of the country. Is it ^|°"^ °^ possible to arrive at a definite conclusion ? Perhaps, for Teutonic the present, the question must be left to the antiquarians, theory, whose material, when collected, it will fall to the lot of the historian to interpret. It is, however, necessary for our immediate purpose to note the precise points of contention between the two rival theories, and thus to indicate the direc- tion in which future evidence may be expected to point. At the outset it may be noticed that the difference between the two schools, which for the sake of the contrast has been pre- sented stripped of all qualifications, is, by their introduction, considerably and appreciably modified. It is, of course, the extreme theory of the advocates of a purely Teutonic origin which suffers by their introduction. Thus Mr Freeman acknowledges that ' the literal extirpation of a nation is an impossibility':^ and all advocates of Teutonic influences allow ' A^orm. of the survival among the English of women and slaves of ^^'"J- '• ^^^ British blood. The cities too, though the destruction was such that in many cases their very sites have passed away, may sometimes have remained in possession of their former in- habitants, but in dependence on their conquerors. It is even not improbable that the greater men made terms for themselves with the invaders ; while it is most likely that on the western borderland, where the two races joined, large numbers of the Britons remained mingled with the new comers. There are instances of the existence of patches of country, such as the small kingdom of Elmet or Leeds, which seem to have re- mained for a while under their old rulers and only gradually to have been assimilated by the surrounding English popula- tion ; and it has even been conjectured that in places where local industries survived, such as the smelting in the Forest of Dean and the lead mines of the Peak, the old population of skilled workmen remained and kept up their special organiza- ., tion."-' Again, despite the general prevalence of Teutonic ham"'^";/^' nomenclature, it is not to be denied that the designations of hid. and Icreal features of the country often retained such Celtic forms '^°"'- ^- ^^• as pen, dun, ock, combe, and exe.^ None of these admissions ''Green, would of themselves setde the question against the school of £^,t/"fj the writers who make them. But they are willing to go even 138^ lO ENGLISH CONSTITUTIONAL HISTORY further. It is, perhaps, not wonderful that Roman Britain should have set the bounds of the settlement of the English, and that thus * the political structure of its provinces had an influence on the settlement of the invaders, and even the social life as far as it was controlled by roads, boundary marks of estates, and fields'; but the same writer seems almost to surrender his whole position when he acknowledges that 'it was thus that the Roman Vill often became the English township : that the boundaries of its older masters remained the bound marks of the new : that serf and la^t took the place of colonus and slave : while the system of cultivation was probably in the case of both peoples sufficiently identical ^Making to need little change in field or homestead.'^ The modifica- of Eng- tioiis of the theory of pure Teutonic descent are, then, both '^^ ' numerous and important, though it is difficult to meet the summary judgement of a high authority ' that all these proba- 2 ^ c ff_ bilities only bring out more strongly the improbability of any § 28. commixture or amalgamation of the races.' - The early In passing to the precise points of contention between the land sys- ^ival theories of English origins, it will not be necessary to interpreted dwell on what may be described as the older class of argu- hy(i) the ments, which constitute the bulk of those just given on the S^h^T*^ side of the Romano-Celtic school of writers; for, these are avowedly conjectures unsubstantiated by continuous historical proof and resting in the main on such striking analogies between the Roman and the English system as might be accounted for by similarity of circumstances. Under this head come the identification of the territoria and the shires, the municipium and the burh, the collegia and the gilds, and the descent of the ' trinoda neccssitas '—the threefold obligation on every English landowner of repairing the bridges and walls and serving in the local militia — from similiar duties which lay upon the manorial lords of the Roman occupation. The •■' Green well, arguments drawn from anthropological considerations,^ such as British ^-^e study of human skulls found in ancient tombs, are so Barrows. j^jgj^jy technical, even if the results are not in themselves con- flicting, that no apology need be made for omitting them. It is over the system of land oivnership that the strife at present rages. Did the English settle in that system of free village communities which one interpretation of the accounts given by INTRODUCTION II Caesar and Tacitus represents as the basis of their social organization in the German lands whence they came ? or did they accept from the inhabitants of the island that system of individual and absolute ownership which was established by the Romans in all their provinces ? Both schools agree that the cultivation of the land was carried on by a common and co-operative method. The question, therefore, may be defined as a dispute tvhether it 7c>as their fnedom or their serfdotn that these cultivators possessed in common. Now, German writers have fashioned for us a social organization to which they have given the questionable title of the Mark.^ This was a village The ' Mark community which had grown from the expansion of one family system. into several households. These had kept together for sue- ^ Kemble, cessive generations and had settled down side by side on the -^^-^w" ^"■ ° . . . ^, . -^ , Ens;land, same clearmg m the prmiaeval forests. Their settlement was \ -j^, characterized by a supposed common kinship among the in- habitants ; a common, or rather equal, ownership of the land belonging to the community ; and the cultivation of that land according to a common method. To the head of each family was allotted, besides a .separate and permanent dwelling, a definite share with his neighbours in the arable land which for fairness' sake was annually redivided, and a proportionate share in the woods and pastures which were not temporarily divided but continued to be held in common. Much has been made of the difference in method of cultivation between a two-field, and a three-field system. In the former, all the lands outside the woods and waste would be divided annually into two ; in the latter, into three great portions. Of these, in the rudimentary agriculture of the time, each portion in rotation would be suffered to lie fallow : the one or the two remaining portions would be annually redistributed among the cultivators who would be bound, each on his own share, to grow a certain kind of crops. The three-field may denote a more advanced stage of agriculture than the two-field system, in that it gives scope for a more extensive rotation of crops ; but much may be accounted for by the difference of circumstances and of soil. Out of this somewhat hypothetical social system a few (2) The enthusiasts have endeavoured to develop the whole of the pgj'J-^""' early English Constitution. More moderate writers who School. 12 ENGLISH CONSTITUTIONAL HISTORY ' .S-. C. H. § 19- - M. F. de Coulanges, Kccher- ches sur (jiielqites probli')>ies d'histoire, 322-340. •■' Ashley. Inlroduc- tion to V. dc Coulanges' Origin of Property in Land, xvi.-xx. •« .V. C. H. §36. equally believe in it as a social basis common to the whole of the so-called Aryan race, whether in Europe or in Asia, point out that, inasmuch as the development of many nations of x\ryan race has evidently been arrested and they themselves have been reduced to insignificance, the social life of the English could not have been based on the mark system alone.' Indeed, on the most favourable hypothesis it was merely an agricultural system, and the equality which underlay it would naturally disappear with the frequency of inter-tribal war and the resulting opportunities of acquisition and the satisfaction of ambitious desires. But the advocates of the continued existence of Romano-Celtic influences de7iy the existence of the mark system altogether. One critic,- with reference to its elaboration by German writers, has called it ' a figment of the Teutonic imagination,' and has pointed out that there is not a single real instance of the use of the word ' marca ' in the sense of landownership by a com- munity. Caesar and Tacitus furnish the earliest accounts of the Teutonic invaders of Britain, but their evidence may be interpreted in support of a theory of individual ownership with at least as much plausibility as they have been cited to prove the existence of a system of common ownership as well as common cultivation. The analogies with the village com- munity of India have been denied : the parallels from Russia and elsewhere are otherwise explained. As a last refuge, some of the Teutonic school have asserted that the system itself existed, though the application of the term ' mark ' may have been unwarranted. But even for this final position no room is left, for it is contended by the opponents that early German law is based on the assumption of private land- ownership ; that the only alternative is the possession of rights by the family, and that the term com)non merely denotes the enjoyment by two or more individual owners.-' It should be pointed out that, however important may be the place of this question in the discussion of origins, it does not enter very practically into the course of English history ; for, ' although traces still remain of common land tenure at the opening of Anglo-Saxon history, absolute ownership of land in severalty was established and becoming the rule.'* The existence of individual ownership at the very outset of INTRODUCTION 1 3 English history, is argued upon two further postulates. That, so far as evidence carries us, the svsfem of cu/fivation diirhigthe Ro77ian occupation of Britain ivas manorial is, with reservations, Means of admitted on all hands. In other words, the Roman villa was transmit- an estate belonging to an individual owner, who probably ^^^ cdtk " cultivated it by a villicus or steward, through the medium of influences, coloni, semi-servile cultivators of small plots of their own, and of servi who were absolutely at the lord's disposal. It must further be premised that the English accepted the system of ownership and cultivation which they found established in the island. Such a supposition is possible only on the theory of a large Romano-Celtic survival. Now, in addition to the arguments already given in disproof of the theory of extermina- tion, it should be noticed that the Welsh poets who chronicle the invasion, complain that ' a race of Romanized Britons, whom they call Loegrians, took part with the invaders against their Keltic kinsmen.'^ But the real connecting link between i Pearson, the old inhabitants and their new conquerors is supposed to ^^^- °f have been made by a pre-existing Teutonic population whom •^' ' the Romans, in pursuance of their common policy, deported into Britain and settled in the south-eastern portion of the island.- These would be likely to welcome the invaders and " Dr Stubbs to impart to them the civilization which they themselves had ^""^^Q^f^^^' learnt. If together with these Teutons is reckoned the Celtic § '29. population which survived in the cities and even in a servile condition in the country, there would be ample means through which the social organization of the old inhabitants could be impressed upon their conquerors ; while, if the accounts of Caesar and Tacitus are pressed into the service as witnesses to the existence of individual property among the Saxon tribes, in principle the organization of the old and the new elements of the population would not be appreciably different. In the present state of our knowledge it is probably inadvis- Conclu- able, even if it were possible, to attempt a definite decision in ^'°"^- favour of one or other of these rival theories. It should, however, be remarked that to either theory, as it is ordinarily stated, there is a fatal objection. On the one side the descent of the Norman manor from the Roman villa is not able of itself to account for one of the most characteristic traits of the manorial system — the existence of extensive rights of private jurisdiction. 14 ENGLISH CONSTITUTIONAL HISTORY ^ Domes- day, 345- Jenks, Law and Politics in the Middle Ages, 149. 2 Ashley, op. ctt. xxxviii. On the other side it has lately been shown that to attribute the idea of common ownership of land to a primitive community is to commit an unwarrantable anachronism. Of these, however, more in their proper place. Our business is not with the earliest forms of social organization even among the Aryan race. The construction of ' a normal programme ' of social progression for mankind at large has justly been stigmatized as 'idle and unscientific.'^ We must take our evidence as we find it, and in its interpretation we must carefully avoid reading into it the ideas of a more scientific and a better ordered age. Thus it has been well said that ' one of the most unfortunate consequences of the mark theory has been to create a vague impression that any condition lower than absolute freedom was altogether exceptional in early English society.'- But freedom is an altogether relative term; for in early society unfreedom does not by any means denote right- lessness, and infinite may be the stages between the class immediately above the absolute serf and the few individuals who possess privileges of an exceptional kind. Within the limit of a few pages it is impossible to deal with the innumerable variations of the two opposite theories of the origin of English society. In the following chapter an attempt will be made merely to summarize the conclusions of the greatest weight. But our earliest direct evidence is so scanty and so scattered that at every step we are treading on disputed ground, and although we may be nearer than our predecessors to an attainm.ent of the truth, many of our conclusions must to the end remain matters of pure conjecture. CHAPTER I THE LAND AND ITS INHABITANTS § 3. It is universally agreed that in all Teutonic villages, The whether manorial or communal, cultivation was carried on by o"g'r>'il a co-operative method. The reason for this method is to be Jf t^g found in the fact that the holding of each individual consisted Anglo- of scattered strips of land of a roughly uniform size. Now Saxons, such a system would seem to point to the original equality of the villagers, for no owner of a large continuous tract would ever desire so to divide his land. Thus the existence of this system of scattered strips on English soil may be taken to show that ' our English fields . . . were laid out by men who would sacrifice economy and efficiency at the shrine of equaUty.' ^ Co-operative agriculture, then, would be a neces- ^ Domes- sity : the arable land would pass under the common plough ; '^'^-^'' 337- the plough would be drawn by a team of oxen supplied in equal proportion by the holders of the lands which they traversed. But despite this common cultivation, there can be no manner of doubt that the several strips of the arable were individually owned by the villagers, while evidence of a later date shows that the rights over the undivided meadows and the woods and pastures were apportioned among the owners of the arable strips. The idea of a landowning corporation is a legal idea which arises late in the evolution of legal ideas, and is one which ' primitive man . . . could not for the life of him have grasped.' - A more disputable point relates to the 2 Maitland, character and size of these village groups. It was only at Survi7>al of a comparatively late period in Anglo-Saxon history that they comtmmi- became connected with the police organization of the country, ties, Law while from their very first existence the natural tie of kindred 9^^^^- ^^^- IX 226 seems to have sat loosely upon them. Apart from these the lb l6 ENGLISH CONSTITUTIONAL HISTORY only bond which kept them together was an agrarian bond. And even the strength of this in early days on English soil may be exaggerated ; for it has been held that our earliest evidence would warrant us in believing that the normal holding of the ordinary villager was a hide, which has been interpreted as an unit of 120 acres of arable land, the land appropriate ' Domes- to a plough team of eight oxen.^ If this interpretation can be . cit, 76, 22 ENGLISH CONSTITUTIONAL HISTORY however, survived, sometimes as part of a comprehensive phrase to denote the whole of the English people (eorl and 1 S. C. ceorl),' sometimes as a convenient and familiar description of 65- § I. the great officials of the court and nation, the class from whom cap. \'in. '^^'ould be taken the ealdormen or provincial governors. Mean- 2, and 75, while the thegns pursue a chequered career. It is true that Cniii s ^Yiey all keep the same legal status as expressed by a similar wergild of 1200 shillings. But this is the only point of similarity between all the members of the class. The term is applied equally to the great ealdorman, to the king's thegn, the thegn of any other lord; the ordinary ' scirthegn ' who as the holder of five hides is responsible for the defence of the shire, and, finally, to the ceorl who by the acquisition of certain posses- sions has thriven to thegn-right. In theory perhaps, every thegn is a member of an hereditary caste, who stands in certain personal relations to the king or to some superior thegn, and who, as the owner of five hides, is bound to military service - Domes- whether in person or by deputy.''^ As a matter of fact, the ' 'y'' ^ 4- practice of equal division of land under the folklaw would soon produce a class of poor, if not actually landless thegns ; while the exigency of military service opened the social rank to any ceorl who had accumulated the requisite quantity of land, and had placed himself or had been placed in the necessary relation to a lord. Below the Nobilis in Tacitus's description came the Ingenuus, the ordinary freeman, the Ceor/ of Anglo-Saxon history, who, in everything except a certain social precedence, is described as the equal of the nobilis. The compilers of Domesday over- whelm us with names which on investigation seem to be little more than local descriptions of this class. Thus, in some of the western shires we note the presence of radmanni or radchenistres, riding men who are identified with the geneat of Anglo-Saxon documents ; between the Ribble and the 3 //>/d. 66. Mersey are found drengs,'' in many of the southern shires * Ibid. 39. cotarii or coscets.^ In various places the mention of censorii, gablatores, and even of mellitarii and such like, witnesses to the fact that the persons so designated paid rents in money ^ Ibid. 57. or in kind.'* Many of these names may be due to the local jurors through whom the information was collected, and apart from them the whole class of non-noble freemen seems to fall THE LAND AND ITS INITARTTANTS 23 into two fairly marked divisions. The ceorl or tunesman, inhabitant of a tun,' would originally be a member of an 1 Domcs- agrarian community, but holding his land in individual owner- ^'*>'' 59- ship. As time went on, in some cases he would increase his single hide to five hides and become a thegn ; in other cases he would find himself the owner of an infinitesimal share of his forefathers' original holding. On such a small owner the king's ' feorm ' or, in an alienated seignory, the lord's ' gafol ' would fall with oppressive weight, and it has been conjectured that the levy of the Danegeld put the finishing touch to his degradation.- These tenants were now so poor that the lord 2 /^^'^^ g was made responsible for the payment of their geld. Hence 25, 324. a probable distinction between such of the free ceorls as, merely for convenience sake, may have paid their geld through the lord, and such as held land for whose geld the lord was primarily responsible.^ Of the former class the 3 ji,i^ ^4^ most important were the sochemanni and liberi homines, who 121-127. are often spoken of as if they were the only classes of non- noble freemen mentioned in Domesday. Both classes, especially the former, are also often spoken of as the product of Danish influence ; but although they are found in the largest quantities in the east, they overflow so freely into the midlands, and even into the south-eastern shires, that ' we should be rash were we to find anything characteristically Scandinavian in the sokemen.' * 4 /^^/^ 57 The difference between the two branches of this class seems to have been merely local. ^ 5 ihid. The English word 'tunesman' probably corresponds to the 104-106. villanus of Domesday ; *" but, in Domesday, that and one or two 6 //^/^ cognate words seem to denote the smaller class of ceorls 38-60. who were accountable to none but their lord for the payment of their geld. The bordarii, who in Domesday are almost as numerous as the villani, practically disappear out of later records and need not be further noticed. The villanus proper, though an Anglo-Saxon ceorl, is so far degraded that Domesday speaks of him now as a freeman, now as bearing about him the marks of a servile status. True he enjoys the same wergild of 200 shillings as the whole class of ceorls : true there is no evidence that he was of necessity tied to the soil : this was the fate reserved for the comparatively small class of coliberti, geburs or boors." The villan's rights were protected ^ Ibid. 28, 36-355. blAiA: Huji. ^;;^;j/. scutage due from the whole of the divided knight's, fee, the '• 252-255. lord would exacl from such small tenants rent in the shape of paym ent of various kinds ; and although the payer of the smallest possible sum under the name of scutage ranked as a tenant by military service, yet in his social position he would differ in no way from the simple freeman holding by socage tenure ; ^ so that the introduction of scutage, and the consequent ' Ibid. i. subdivision of the knight's fee, played an important part in the ^S^- destruction of the exclusive nature of the military side of feudalism. With a knight's fee is often coupled a Barony. This was Tenure by the name given to the lands of a great tenant-in-chief of the barony. Crown, and though it would no doubt generally contain a number of knight's fees, there is no reason to suppose with some writers that it was a fixed number of thirteen and a third which alone fell under this description.'* A barony once formed -i cf. was regarded as an indivisible whole : if it escheated, that is, Hallam, reverted to the Crown, it was not merged with the king's \//.' -j ^ estates, but was almost immediately granted out to a fresh tenant ; nor, if it came into the hands of the holder of another barony, were the two united ; the payments due from the holder had to be made separately upon each."' But the chief \m^or- ^ p. and M. tance of the idea of a barony lies in the division which it ^- 259-261. gradually produced in the military tenants-in-chief of the Crown. Soon after the Conquest the holders of an earl's or baron's barony began to form a class by themselves, apart from the simple tenants by knigiit service of the Crown ; and L'S »-C ■ 28 ENGLISH CONSTITUTIONAL HISTORY in course of time the division was recognized and emphasized by the practice of the administration. Thus the greater barons — majores barojtes, the holders of baronies — were those who were entitled to a special summons to council or camp, and whose money transactions were all carried on directly with the Exchequer. The lesser tenants — barones secundae dignitatis or, more simply, ifiinores — found the sheriff inter- posed between themselves and the Crown. To him they paid their feudal dues, which were fixed in amount long before those of the greater barons ; through him they received their summons to assembly or array, and under him they mustered so long as the feudal levy was employed. The full importance of the distinction between these two classes will be clear when we are dealing with the early history of Parliament. Tenure by (2) Serviential} The essence of feudalism was the render of rp^^"7V service in return for the grant of land. _But while alltejiants i 262-271 owed service, the name servie?ites or Serjeants came to denote a particular class of tenants. The majority of those holding T\xyiX-'T> v^-f^ &y this tenure would have to render service in person ; for 1- , , under this head come, as tenants of the Crown, the oflficef?~of the royal household, of whom the greater soon cease to serve in person ; the various ofiicials, high and low, connected with the forests ; royal messengers and artisans whose duty it was to maintain the royal palaces. The Serjeants of mesne lords would be officials fulfilling corresponding positions in a lower circle. But there were some enumerated among the Serjeants, both of the Crown and of mesne lords, whose duty consisted in finding a man, or several men, to serve with arms of a pre- scribed kind in the royal army. In this way the king obtained, both directly and through the medium of his tenants, a small but useful force of light armed troops and commissariat officers on whom he could permanently rely. Probably the only way of defining the tenure of serjeanty is by noting what it was held to involve. Thus a tenant by serjeanty was held to be unable to alienate his land, or even without his lord's leave to create a tenancy of any kind ; while the close personal relation to which the name bore witness, was marked by the arbitrary character of the feudal dues exacted from Serjeants long after those of all other classes had been definitely settled in amount. In course of time the serjeanties held of the THE LAND AND ITS INHABITANTS 29 Crown, like the military tcnants-in-chief of the Crown, fell into two classes, and, whatever the reason, the result was that a tenant by grand serjeanty was expected to do service in person, while over him or rather his heir, if a minor, and all his possessions, the king established a claim of prerogative ward- ship which utterly overrode even the superior claims of other lords : at the same time tenure by petty serjeanty came to be httle more than the annual delivery to the lord of some merely nominal acknowledgement of his lordship. But the serjeanty of the Crown might be only one among several tenures by which such tenants held various portions of their lands. In 1 ^ C301. such cases a clause of Magna Carta saved the rights of mesne § 37- lords, and denied to the Crown the application of the claims of . '^" ' " prerogative wardship. ^ (3) Spiritual. The tenure known as Frankalmoin, Free Tenure by Alms, Libera Elemosyna at first included all land given from fianl. and M. In further illustration of these various classes of free tenures '• 271-272. three points especially may be selected for comment — (i) the gradual establishment of the exclusive claims of the eldest male heir in the succession; (2) the divorce of any necessary connection between the tenure of land and the personal status of the tenant, status tending rather to attach itself to land than to persons ; (3) the definition, both as to occasion and amount, of the specially feudal rights which the lords could exercise over their tenants. (i) The grozvih of primoge?iiture. Under the Anglo-Saxons primo- the land of almost all those who ultimately held as tenants gL-niiure. in socage was divided, according to the dictates of natural justice, equally among all the sons. But in the case of the thegns, or at any rate the holders of great estates in bookland, their military obligations would make it important that the landed possessions for which they were due should remain intact. That the inheritance of one was an exception even in the highest class, seems probable from the numerous entries found in Domesday of thegns who are described as holding 32 ENGLISH CONSTITUTIONAL HISTORY ^ E. H. R. their land pariter or in paragio} This has been interpreted ^}; ^^^- as describing a group of co-heirs holding an undivided inheri- ii. 261. tance, of whom one, sometimes distinguished as the senior, was Domesday, held responsible to the king for the services due from the land. ^'^^' But it seems very doubtful whether, even in Normandy at the time of the Norman Conquest, the hereditary character of even the great feudal fiefs had been firmly established. At any rate, hereditary rights in them had only very recently been admitted "^ P. and M. by the overlord.- Thus it was not the example of the Norman i. 48-49. nobles which brought about the application of a rule of exclusive succession to all the military fiefs in England. The cause is rather to be found in the enormous strength of the administra- tive power built up by the Norman and early Plantagenet kings. It seems probable that William and his sons in- sisted rather on ' impartible succession ' than on a strict enforcement of the rule of primogeniture. It was with the military fiefs alone that the king would concern himself; for, a diminution of the holding might mean an inability not only to discharge the requisite duty (and all military service in England was service to the Crown), but also to pay necessary feudal dues. Thus the recognition of the responsibility of one out of a number of co-heirs and co-owners for those purposes which were most important in the eyes of the administration, would ultimately result in the recognition of his responsibility for all purposes, a recognition enforcible in the royal courts. And the most obvious rule, and the one most free from all chance of dispute, would be one which placed the responsi- bility upon the eldest son irrespective of all....Qtlier claims Vhatsoever. The stronger the administration, the more com- plete was the form of primogeniture which ruled the succession to military holdings. The powerful king must have no manner of doubt where rests the duty of military service. Thus English law far out-stripped Norman law in the rigidity of the rules of succession which it recognized. There seems little doubt that primogenitary succession was in the first instance enforced from above ; its denial of the dictates of natural justice made it unpopular with the landholding classes ; its simplicity as a working rule commended it strongly to the royal officials.'^ 2^8-262' Natural justice and political expediency struggled against each other, until the formulation of the machinery of government THE LAND AND ITS INHABITANTS 33 under Henry II placed a weapon in the hands of the Crown which no sentiment, however strong, could gainsay or resist. The principle of primogeniture, established in one class, spread by degrees to all classes, especially as the judgements of the king's courts superseded or appropriated local or customary law. Tenants by military service occupied by far the largest portion of English soil. As the introduction of payment in lieu of military service encouraged the subdivision of military holdings, the number of military tenants increased until, by the end of the twelfth century, they formed by far the larger portion of all the free tenants of the country. Then, as the power of the king's courts grew at the expense of the manorial courts, it became necessary even for tenants in socage to establish a prescriptive right to a partible inheritance, and those who could do so became constantly fewer in number ; ^ while in the 1 p. and M. smaller holdings the necessity of keeping together the cattle "• 264-267. used for tillage, would operate as a very real check upon too minute a subdivision.- So rapidly did the rule spread thatsvino- even the holdings of many among the unfree villan tenants gradoft, had ceased to be partible, the descent being regulated by ^„J. "ci some custom of inheritance enforced by the manorial court. But this custom was not always in favour of the succession of the eldest son. The town of Nottingham contained an English and a French borough lying side by side, and in 1327 lawyers found that while in the latter the holdings of the burgesses descended by primogeniture, many of those in the English borough descended by custom to the youngest son. Hence the Borough English which writers have popularized as the name for a tenure which should at least be distinguished as 3 „ ,., Ultimogeniture, but whose limited prevalence scarcely justifies i. 631; the importance attached to it, at any rate in English history.^ "• 277-281. (2) Divorce of tenure and personal status. It has been said jgnure and that mediaeval, no less than modern, law recognised the interest status. of several tenants in the same plot of ground. Moreover, each tenant might hold by a different tenure — that is, the agreement as between any one of those tenants and the tenant who held immediately of him might be of quite a different nature to the agreement made between the latter and his tenant. Thus the lord of a tenant in villenage might himself hold his land in free socage from the abbot of a monastery who held it in D 34 ENGLISH CONSTITUTIONAL HISTORY frankalmoin of a tenant by knight service of the Crown. In such an hypothetical case four different sets of services were due from the land, and the claims to them had arisen from ^ P. and M. four separate bargains.^ All who had an interest in the land i. 276-277. ^^.g^g regarded as having, in legal phraseology, seisin or posses- sion of it ; but while the actual cultivating occupier, provided he were a freeman, was seised of the land in demesne, all others who had any interest in it were said to be seised of it in service. But the constant creation of new tenures in connection with the same piece of land caused a gradual separation to be made in the mind between the obligations due from the holding itself and those due from any particular tenant of that holding. This was expressed in the law, which by degrees came to regard any given mesne lord as seised not of the land itself, but of certain kinds of services due from it. So much, indeed, did such services come to be regarded as a single whole that, in course of time, precisely the same remedies were available to a lord whose tenant failed to perform the stipulated services, as had been originally devised for an occupying tenant 2 Ibid. ii. who had been disseised or turned out of his holding.- But, 39. 127, further, the services themselves admitted of distinction. Those which arose from' a bargain between any individual subtenant and his lord were described as Intrinsec, in contrast to services which were already incumbent on the land as the result of an agreement between the lord and his superior lord, and which were known as Forinsec services. The intrinsec service of the subtenant might, or might not, include the whole or part of the forinsec service, which lay upon the land before his bar- gain was made with the person who enfeoffed him. In either case these terms were relative, and the intrinsec service of a mesne lord to his superior lord would be forinsec as regards =* Ibid. i. the bargain between the mesne lord and his subtenant.^ The important point is that the service due from each particular piece of land came to be everything, and the actual status of the holder of the land a matter of comparative indifference. It is scarcely possible to overrate the effect of this manner of regarding the tenure of land in breaking up the social system of the middle ages. Great nobles thought it no degradation to hold land on socage tenure of mesne lords far below them in the social scale, or even to undertake the more precarious THE LAND AND ITS INHABITANTS 35 liabilities of the unfree villan holders ; and in the first half of the thirteenth century the king's judges were on the point of giving to freemen holding villan land a recognition which ' Maitland, would have seriously altered the whole position of the unfree ^^^'^ class, and would have anticipated by nearly three centuries the j^ev. vii. actual course of events/ 174-175. (3) The Feudal Incidents. Among the various services and The inci- payments with which free tenures were burdened, there were i5"^? ? • 11-1 reudal a certam number which are known as the teudal Incidents, Tenure. i.e. as inseparably incident to that tenure in chivalry or by knight service which is generally regarded as the essential, or at least the typical, element of the feudal system. But many of them were known in England long before the Norman Conquest, and in the feudal system itself they were by no means to be found only in connection with tenure by knight service. But the Norman Conquest affected them as it affected every department of English life — it simplified such obligations by interpreting them according to a few uniform rules, and by tending to translate them into terms of payments in money. Thus, broadly speaking, the rights of the lord over his free tenant under the feudal system may be divided into (i) actual pay- ments, whether on a fixed occasion as the Relief, or casual as the Aids ; (ii) the privilege of such protection of the heir or heiress during minority as is expressed in the terms Wardship and Marriage ; (iii) the ever present chance that his seisin of the land in service might by forfeiture or escheat become his seisin of it in demesne. (i) (a) Relevvum or Relief ^-^ It may be conjectured that - Z'. awd?^/". in prehistoric times the lord fitted out his dependant with '• 239-299- whatever was necessary for the exercise of the latter's calling. Thus to the soldier he would give arms, to the husband- man the needful stock for his farm ; and on the death of the follower this equipment would return to the lord who gave it. To the military equipment was applied the term Heriot (heregeatu, i.e. military apparel), but it is possible that at an early period in Anglo-Saxon times a gift of land took the place of the original horse and arms, although the render to the lord by the heir of equipments of a certain kind still bore witness to the practice of an earlier date. Thus the laws of Cnut provide for such payment in the $6 ENGLISH CONSTITUTIONAL HISTORY case of three grades of landowners in the event of their dying S. C. 74. without having made provision for it in their wills.^ Whether or no, as is generally supposed, the heriot implied an original personal connection between the lord and the late tenant, while the relief represented a life-relationship between the two based on land, the Normans at once translated the existing heriot into a relief, and in Domesday the two terms seem to be used interchangeably. But they were not merged. The rule of primogeniture or even of inheritance was not established even in the military holdings until some time after the Norman Conquest, so that the relief for a long time represented an actual bargain between the lord and the incoming tenant, and thus bore witness to the former's possession of the land in question. In England, at any rate, it was paid by every one who succeeded a free tenant irrespective of relationship. The heriot, on the other hand, bore a far more personal flavour, and the evidence of manorial ' extents ' or surveys shows that it was paid by the villan classes, who continued for some generations undoubtedly to hold their tenements at the will of the lord. It is possible that the earlier interpretation of the meaning of the heriot may be merely a reading back into Anglo-Saxon times, and an extension to the higher classes of the community, of that personal connection which the later law- books feigned between the lord and his unfree tenants. But as the reUef in course of time became gradually fixed, all connection between it and the heriot ceased. With a probable reference to the extortionate conduct of his brother, Henry I in his Coronation Charter promised that reliefs should be 'just and - /did. 100. lawful ' on the part both of the king and of other overlords. ^ § 2- This was interpreted by the legal writers of his time with reference to Cnut's law, which, however, Henry himself did not maintain. The amounts paid as relevium, both to the king by his tenants-in-chief and to the mesne lords by theirs, were still matters of bargain in each individual case between lord and tenant. But the great legal authorities of Henry H's reign note that, while the old method obtained for baronies, the relief for a knight's fee had become fixed at 100 shillings, and the liability of the holder of socage land was a whole * /did. 163. year's rent.^ The Articles of the Barons demanded the ancient ^' "*■ relief,'* and in consequence Magna Carta further defined the ■* /Sid. 290. §1. THE LAND AND ITS INHABITANTS 37 relief to be paid by the barony of an earl or baron as a fixed sum of ;^ioo.i But there seems to have been some doubt ' i". C. 297. about the amount to be paid by a baron's barony, which before § ^• the end of Edward I's reign was reduced to 100 marks. '-^ "" Bemont, So long, however, as reliefs were exacted, those paid for ^^^°-^'^'^^ serjeanties remained in the discretion of the lord. But while Liberty every lord w-as entitled to a relief from the heir to a free Am^laises, tenement, he was not entitled to enforce his claim by occupa- ^'^ ^ ' tion of the land if the heir had already obtained seisin. On the other hand, ' primer seisin ' was a prerogative right of the Crown ; the heir of the royal tenant-in-chief could not lawfully obtain possession until inquest had ascertained his right, homage had been done, and he had at least given security for the payment of his relief.^ ^ /\ and M. (/)) Auxiliut7i or Ai'd:^ The close relationship which was i- 292. supposed to exist between the lord and his men gave the . ^^'^'^• former an excuse for demanding from his tenants pecuniary ' "^"^ aid on all kinds of occasions. It was to the interest of the tenants to limit the number of such occasions. Thus under Henry II a great legal authority defines them as the knighting of the lord's eldest son, the marriage of his eldest daughter, and a contribution towards payment of the relief which his lord owes to an overlord.^ Magna Carta finally sanctioned s ^. C. 163. the two former together with a third for ransoming the ^- ^• lord from captivity.'' These were omitted from subsequent *" ^^'^- 297- editions of the charter, but nevertheless they came to be ' known as the three regular feudal aids. Presumably the amount payable for ransoming a lord from captivity must have depended upon circumstances ; in the case of Richard I the Crown vassals were called upon for an aid at the rate of 20 shillings on the knight's fee." Under Edward I this ? /did. 252. same amount was fixed by statute for the two other occasions ^°S- in the case of owners of a knight's fee or of ^^20 worth of land 210^*^ in socage tenure held from Fa mesne lord,^ and m 1351 was s y/,/^_ 4^o_ extended to the tcnants-in-chief of the Crown. ^ c. 36. But the lords did not consider that the settlement of these '*25Edvv. Ill aids precluded them from exacting others for such purposes as payment of a debt or of a fine to the king or even for the stocking of their land, a:nd the theories of the lawyers helped them to regard the extent of their claims upon their vassals as Stat. 5. II. 38 ENGLISH CONSTITUTIONAL HISTORY dependent upon circumstances. Thus Magna Carta provides that no aid, except the three specified aids, should be imposed without the leave of the Commune Concilium Regni ; that even such aid should be reasonable, and that mesne lords should 1 S. C. 289- exact no aid at all except on the three specified occasions ; ^ 299. §§ 12, ^yi^iig ti^g Confirmatio Cartarum again forbids illegal aids.- - /bid. ^Sg. But probably the greatest safeguard was the growth of that § 6, strong administrative machine which made it practically impos- sible for a lord to collect an aid without the authority of the king and the help of the royal officers. The Acts of 1275 and 1351, however, must have destroyed the legal theory of the optional character of such aids. With the decay of the feudal system the payment of the three aids by the tenants of mesne lords must have practically ceased. The crown never had a second occasion to raise a ransom ; but the two remaining aids were exacted from time to time, though at such long intervals as to give them the appearance of extortions. ^ P. and M. (ii) {a) Custodia or Wardship.^ As the precarious bene- i. 299-310 ficium grew into the heritable feodum^ the king and, in imitation of him, the mesne lords kept a control over their tenants by insisting on the rights of wardship of a minor heir. Henry I in his Coronation Charter promised that the right 4 ^ Q 100- should not be abused,'* but there is evidence that he used ioi-§§3>4- it as a means of raising money. This was possible, because the rights of a guardian were regarded as property and, as such, were saleable and even disposable by will. In the fully formulated law of the thirteenth century the lord of a tenant by knight service or by military serjeanty not only was possessed of the person of the heir, but could take for his own use the rents and profits of the land so long as he committed no waste. If the tenant held of several lords, the guardianship of his person was the right of the lord from whom his family derived their most ancient title to the land ; while the different tenements of which the estate was composed would fall under the guardianship of their respective lords. If, however, the king was among these lords, his claim over- rode that of all the other lords, and the wardship both of the heir's person and of all his lands, no matter from whom they were held, went to the king by the right of ' prerogative ward- ship.' The abuse of these rights did not pass without an THE LAND AND ITS INIIATUTANTS 39 occasional attempt at a remedy. Henry I extended the custom in the guardianship of socage lands to lands held by military service, by transferring the guardianship of the heir of such land to the widow of the next of kin.^ The Assize of 1 .s-. c. loi. Northampton, however, restores it to the lord.- though Magna § 4- Carta provides that guardians should only take ' reasonable '" -'''^''^- 'S'- profits and should not abuse their trust.^ ^ ^^^^-^ In the case of socage tenants the rules of guardianship were §§ 4, 5. in theory far more equitable. The guardian was the next of kin among those who could not inherit, and this would most commonly be the mother : the compulsory supervision lasted only to the fifteenth year, when the heir could choose his own guardian for the remainder of his minority. Moreover, the Provisions of Westminster "^ (§ 12, confirmed in Stat. Marlb. § 17) 4 /^/^_ .q,_ made an important difference between the guardian in chivalry and in socage, by holding the latter accountable to the heir for his administration of the estate. On the abolition of mili- tary tenures under Charles II these rules were extended to all holdings, and a statute placed the choice of guardians in the father's hands. (d) Maritagium or Marriage? One of the most important 5 /> ^„^^;j/_ results of guardianship was the right of regulating the marriage i- 299-310. of the ward. The earliest shape taken by this right is the power of rejecting the chosen suitor of an heiress. The foundation of such a right was the supreme interest of the lord in providing for the fit and faithful administration of the military service and other duties which lay upon the estate. This would not be possible if the heiress married a cripple or an enemy of the lord. But the right was soon extended. Henry I's charter promises no abuse in the marriage of daughters,*^ and even the great law-book of Henry II's day 6 5 q iqo mentions only the marriage of women : but there is evidence § 3. that even in the reign of Henry I heirs could not marry without their lord's consent, and instances of the sale by the king of the rights involved in this last development of guardianship are so numerous under Henry II's sons as to prove that it was a growing custom under Henry II himself. In the fully developed law of the thirteenth century no tenant holding by knight service could lawfully give his daughter in marriage without his lord's consent. The law (Magna Carta 40 ENGLISH CONSTITUTIONAL HISTORY ^S. C. 297. ^ 6,' Stat. Marlb. ^ 17) contented itself with forbidding the lord to force his tenant into a disparaging union. Such temperate provisions may show that these rights of wardship and mar- riage were not so oppressive as modern writers suppose. The w-ard could always marry his or her choice on payment of a substantial fine to the king or other lord, and the cases were probably few in which large sums were raised by the sug- gestion on the lord's part of a series of unacceptable suitors. Anyhow, the lords found them profitable rights ; and while the liability to military service was easily compounded for or ex- changed for a tenure of a different kind, the other liabilities involved in the original tenure by knight service were carefully preserved and on every occasion extended. (iii) The recovery of the land by the lord through Forfeiture -P. and M. or Escheatr 1- zy^-iyi- It has been pointed out that the basis of the feudal system was a contract wherein the tenants undertook to perform certain services in return for a grant of land. The estate returned to the lord on failure of the heir to perform his por- tion of the contract. But the lord early lost the power of evicting a tenant for mere non-performance of his services. He possessed, of course, several methods of calling the tenant to account, but a description of them belongs too strictly to the province of legal procedure to concern us here. There remained, however, two occasions on which the land escheated to the lord. ' Only God,' quotes the great lawyer of Henry H's day, 'can make an heir, not man.' Thus, if the tenant died without legal heirs, his estate returned to the lord. Moreover, if a tenant were outlawed — a very common occurrence in the middle ages- — or if he were convicted of one of the graver offences which come under the head of felony, the king claimed an ancient right of wasting his land for a year and a day ; but after that, it escheated to the lord. If, however, the tenant were convicted of treason, his blood was considered corrupted, his heirs could not inherit, and, no matter from whom the land was held, it was claimed as forfeit by the king. Perhaps enough has been said to show that although the growth of the king's court may have helped to simplify and unify the relations of classes and the variety of tenures, yet society in England remained after the Norman Conquest an THE LAND AND ITS INHAI5ITANTS 4I exceedingly complicated structure. A whole series of lords might claim rights of many different kinds based upon their interest in the same piece of land ; an individual tenant might hold his land of a number of different lords on a great variety of tenures. Each individual and each tenement under the feudal system has to be viewed in many relations, and the most accurate definition of feudal tenure is that which finds it to be 'a complex of personal rights and real rights,' i.e. in connection with both individual tenants and the tenements which they hold.^ Nor is this complexity much removed ^ F. and A/ when we go on to examine what is generally regarded as the '• ^^4- social unit of feudal society — the lord's manor. Yet such examination is not without its use ; for, although the relations of any single tenant or of any single acre of land are exceed- ingly complex, the tenements and tenants, viewed in any one of their relations, do conform to one or other of a few- general types, and may be best depicted by gathering them into an unit which, though its importance is overrated, was sufficiently widespread to form the basis of instructive gener- alisations. § 5. The word Manor was not a technical term of The mediaeval law. Writers of post-feudal times give it certain ^^nor. . L ^eiTnite"'j:hara"cferrstics which centre round the right to hold ^ l . a court. It seems probable that in Domesday it was used ^'i - with a definite legal meaning. Much evidence has been adduced to show that the manor of Domesday, with its vast differences in size and its often widely-scattered lands, was yet treated as an unit for purposes of taxation. Domesday was compiled with the object of showing the king for how much geld the country was chargeable, and it has been sug- gested that 'a manor is a house against which geld is charged.'- Hence, rather than on the assumption of a purely - Domes- feudaTtlieory, comes the underlying principle that every piece "''^'''' '2°- of land forms a part or the whole of some manor. Hence, too, the instructions of the Conqueror to his commissioners first to ask all about the villans, cottars and slaves, for whose geld the lord was primarily responsible, and then to investigate the position of the liberi homines and the sochemanni who them- selves paid geld, but paid it through the owner of the ' maner- ium.' But with danegeld disappears the technical meaning of 42 ENGLISH CONSTITUTIONAL HISTORY 1 P. and M. i. 592. Cf. also Domesday, 107 et seq. As an unit for various purposes. '•^ Domes- day, 129. '^ Ibid. 1 36. ^ P. and M. i- 593- a manor, and in the language of the thirteenth century it comes to correspond to the ordinary modern use of the word Estate. No doubt it impHes an area and a more or less continuous area of a certain size, but the name is found in con- nection with tenements of such various extent that perhaps the only definition of a manor is that it was 'a complex_of_rights ^ver lands and tenements.'^ In idea it may be said that the manor tended to become ap- proximated to a jurisdictional, a geographical, and an economic unit. Of these marks that which is most inseparably, because almost invariably, in later times at least, connected with a manor is its use as an unit for the exercise oi Jurisdiction. Much will be said of the manorial courts in dealing with the organisation of justice. Here it is only necessary to remark that there are cases in which the lord exercised rights over so small a number of cottagers or even over free tenants in respect of so small a part of their holdings, that it was practically impossible for him to hold a court for them. Nevertheless, in the thirteenth century, if there was one necessary characteristic of a manor rather than another, it was the recognition of the lord's right to hold a court. But it does not seem to have been at all necessary that a manor should form a geographical unit. Perhaps originally it was identical with the vill of public law. But as early as Domesday this had ceased to be the case," and in succeeding centuries the constant creation of new estates not only broke up the vills into several manors, but even caused the boundaries of vill and manor to cut across each other; so that it is no uncommon thing to find the lands of one manor intermixed with those of another manor.^ Thus, it has been said, the fact that any particular piece of land formed . part of one manor rather than of another seemed a mere matter of convenience.* Or perhaps, again, the manor may have originated as an economic unit. It did not, however, neces- sarily remain so, nor did manors of later formation ever of necessity bear this character. It would be difficult, perhaps impossible, to make scattered holdings conform to a common system of cultivation. Any given holding would tend to conform for convenience sake to the system in vogue on the neighbouring land, irrespective of the actual manor to which it might happen to belong; while the practice which often THE LAND AND ITS INHABITANTS 43 prevailed, of letting all the lands of the manor out of the lord's own hand and simply retaining the rents and the jurisdiction of the court, would at once do away with an economic unity which was founded on the necessity of helping in the cultivation of the lord's demesne. For, in an agricultural community, all the arrangements of the manor aimed at procuring a supply of labour for this pur- pose. The principle of common cultivation, whether it be a Common relic of freedom or of slavery, still existed — that is, cultivation cultivation by co-operation and in accordance with a common system, lyj^nor. Thus all who took part in it, including the lord and the priest, held their share of land scattered up and down in strips of vary- ing but roughly uniform size over the whole arable portion of the estate ; while they turned out their cattle into the pasture and their pigs into the woods in number regulated in strict pro- portion to the size of their tenements. There is some reason to believe that in general even the lord considered himself to be morally bound by these restrictions. The object, of course, was to maintain an equality between similar classes of tenants and to ensure a correspondence between the size of the tene- ments and the services due from them ; but, in view of the apparent actual dissimilarity in the amount, it has been suggested that the principle of this equality was agrarian, the statutable size of the unit of measurement varying with the nature of the ground, and quality not quantity being thus the measure of division.' Or it may be that, for purposes of distribution ' Vino- of rents and services, the tenements were reduced to an arti- S/adofiF, . . Vill til ficial uniformity ; for, where comparison is possible, a con- £,i^_ 240. siderable difference is found between the rateable and the actual size. Finally, it has been conjectured that for purposes of taxation the local assessors, ' by means of rules of thumb, which they do not explain to us,' brought into some relation with each other in their assessment the size, the annual value, and the necessary agricultural labour of the individual tene- ments, and thus by a reckoning couched in terms of the money's worth of each portion —librate, marcate, solidate — produced the theoretical uniformity between the various classes of tenants which apparently existed.- But this delusive system 2 /'. and M. of equality of holdings is subordinate to a twofold or rather i- 347- threefold division of the whole of the lands in any given manor. 44 ENGLISH CONSTITUTIONAL HISTORY The first of these divisions consisted of the demesne la7ids of the manor, which were themselves divided into the (a) demesne, strictly so called, or what would now be known as the home- farm, and (/') the villenagium or holdings of the villan tenants, of which in the eyes of the lawyers the lord had the seisin or possession no less than he had of the lands which he reserved for his own immediate use. The remaining portion of the lands of the manor were composed of the tenements of those who held of the lord by some freehold tenure. Although separate portions are found, the lord's demesne in its narrowest sense consisted for the most part of strips intermixed with those of his tenants, following the same course of husbandry and after harvest similarly thrown into the open Manorial fields for pasture. The affairs of the demesne and of the officials. manor generally were regulated by a series of officers with ^ Vill. in fixed duties.^ (i) Over all the manors of a lord would be set E.ng. 317- ^ Seneschal or steward, generally a lawyer, who combined the Ashley, functions of a land-agent and a judge or president of the Eco7i. Hist, courts. (2) To each manor there would be a Bailiff or beadle, an outsider appointed by the lord, who would watch his interests, collect the numerous and petty labour rents, and attend the neighbouring market to sell produce and buy stock. These functions were often undertaken at a fixed rent, and gained for their performer the name of firmarius. {3) In each manor also there would be a Reeve, or praepositits, nominated from among the peasants, mostly at their own choice, and in any case the representative of their interests. His responsibility for the due performance of the villans' services made it an undesirable office; and the duty of serving in this capacity became obligatory on every holder of a certain small quantity of land, and thus came to be regarded as a mark of servile tenure. Below these three individuals were ranged three classes of officials. These were (a) economic, such as the head reaper and shepherd ; {J)) judicial, like summoners and servers of writs ; and {c) domestic, who would be drawn from the growing surplus population. Such of these three classes as were foremen and responsible servants, would be paid by a remission of the liabilities, whether in work or money, which were due from their holdings. The influence of such responsible positions often enabled their holders, in course 11-12. THE LAND AND ITS INHABITANTS 45 of time, to gain a footing among the free tenants of the manor. Such of the demesne lands as the lord did not keep in his own hands he distributed among his villani. One of the most complicated of historical problems is the actual position of the unfree tenant under the feudal system — that successor of The the Saxon ceorl who, as we are often told, was degraded by the ^^|*^''",^^ "^ Norman lawyers into the unfree Norman villanus, and whose tenants, whole position has been thoroughly obscured by the utter dis- crepancy in the facts as we find them in the manorial records, and the theories of all lawyers from Glanvill to Blackstone. In Legal the first place, according to these lawyers, a distinction was to be ^'}^°'^y ^' made between villans regarda7it (i.e. attached to land), and vITTans in ^v-cw-^ (i. e. attached to the person of the lord); but this lias been conclusively proved ' to be baseless. The same 1 Vill. in person might come under both heads according to the con- -^".f- nection in which he was mentioned. Thus a villan regardant ^y also was a villan in relation to a particular manor, and was so called P. and M, by a lord in proving his claim to that villan's services ; while ^- 396-7- a villan in gross needed no further qualification — he was all that his title implied, and was viewed in no particular aspect. For, the villan was attached to the manor as a whole, and not, like the Roman colonus, to a particular plot within it ; he was thus a personal dependant, though the dependence was en- forced through the medium of a territorial lordship. The lawyers, howecer, set themselves to assimilate his position to that of the colonus. Save in one special case, to be noted presently, there was no difference in their eyes between one unfree tenant and another. Servus, nativus, and villanus are equivalent terms. The individuals of the class which they describe were all rooted to the soil (a5-cr;/)////y^/(?/^d'i?),^ whence they_could_not move without the lord's permission. Such a tenant had no protection against his lord ; for the king's couit would not interfere so long as the punishments inflicted by the lord did not extend to injury to life or limb. Nor was it possible for him by any effort of his own to shake himself free from such bondage. Since not only his posses- sions, but even his_very person, belongedTto his lordrhe could not gain his freedom by purcha^.- He was dependent on the " ^- C. 162, compassionate generosity of strangers, or on the liberality of 46 ENGLISH CONSTITUTIONAL HISTORY his lord. But even here we are warned that, while the lord could release his villan from obligations towards himself and his heirs, this did not preclude the claims of another, 1 For ex- even if the villan so freed had attained to knightly rank/ P ^^y}?/^^;i And yet even the lawyers acknowledged the existence of ^«^. 87. .certain indirect ways by which the villan could gain his F. and M. freedom. ^ Residence for a year and a day in a chartered town 1. 41 no e. Q~ Qj^ j-j^g icing's demesne, was perhaps the most common of Limitations these. The same effect was produced j^y the reception of theory ^"^ Holy Orders, which the Constitutions of Clarendon- forbid "- S. C. 140. without the leave of the lord. And if the lord can free his § 16. villan, says Bracton,^ much more can he let him a piece of Lib. IV. \2cci^ by agreement ; and a breach of this agreement comes fol. 208. under the cognizance of the king's courts, and can be remedied by the assize. Nor was this all : in numberless ways the law gradually recognized the existence of the villans as members~of "tlie commonwealth. Although legally, as we have seeivthey could own no property, for them as well as for freemen ^ 5. C. 299. Magna Carta ^ allows certain exemptions from the liabilities to § ^°- heavy fines; while under Henry III, in 1237,^ the members Ibid. 366. Qj- j.j^g Commune Concilium are said to grant to the king an income-tax of 8^. in the pound on behalf of themselves and their villans, an unnecessary addition unless the latter had possessions of their own. Again, the property, not being their own but their lord's, could legally be sold in payment of 6 Ibid. zyj. their lord's debts ; but it is a lawyer who records *' that in the order of such sale the villan's chattels should be taken last. ''Ibid. Under Henry H the Assize of Arms (§§ 3 and 12)" limits its 154) 156- operation to freemen; but under Henry IH we find it * Ibid. extended •'* so as to include the villan population ; for the 356> 371- villans are sworn to arms (1225 and 1252), and their arms are included among that portion of their goods which is exempted from taxation. Finally, they are legally disqualified for attend- 9 Ibid. ance at the local courts ; '^ but numerous are the proofs of their 106, XXIX. employment on royal business, from the collection of evidence for Domesday to the presentment of criminal and fiscal matters 10 Ibid. before the king's commissioners.^" 86, 257. But the lawyers have not been alone to blame for hasty Classes of generalizations on this point. Economic writers have divided the villan class into villans proper, the unfree tenants of the villans. TllK LAND AND ITS INHABITANTS 47 co mm on fields. of the manor, who were responsible for supplying the plough teams by co-operation ; ^nd Jhe..lw:dars and cottars^ small hnldt-Ts of u cottage and garden and the performers of "~tHe~nioicJiuiiil)lc and servile work upon the demesne. This division is convenient, but does not ajipiar to correspond with facts. The bordars, who in Domesday form more than thirty per cent, of the enumerated population (between 70,000 and 80,000), disappear almost entirely from subsequent records ; while the cottars, who reached only 5,000 at the same period, never rose in numbers to the dignity of a separate class. The villan class may be dealt with as a whole. The names Villan to denote it are as numerous as the points from which the tenure. villan is viewed. They sometimes allude to status, such as servus and nativus ; sometimes to tenure, as in villanus and rusticus : more rarely the nature of the services gives rise to such descriptions as operarius and custumarius ; or the size of the holding supplies the form virgatarius or yerdling. As the commutation of services which had begun before the Conquest gives the clue to rare names found in Domesday,^ such as 1 Ashley, censuarii, so the normal holding of the villan, a virgate of thirty Econ- Hist. acres, explains such expressions as a full and a half villan ^" ' ^' ^ ' '* (plenarius aut dimidius villanus : half yerdling). The unit of the manorial system was the hide of 120 acres of arable, the amount of land which might be cultivated by one normal plough drawn by eight oxen. The number of oxen requisite, as well as the respective size of the individual holdings, would naturally vary with the quality of the soil. But a fourth part of a hide, or a rough measurement of thirty acres, was now regarded as the normal holding of the villan tenant. It was on these two units, the hide and the virgate, that all calculations of services were made ; and, although the acquisition of villan land by freeholders necessarily must have slightly altered the position of the lord towards the individual holders, the duties remained as a fixed quantity entered in the manorial rolls, and were practically subject neither to increase on the part of the lord nor to substantial diminution by the tenant. But this must not be overstated. It was at thejord's initiative that jnany of the vil lan tenants wer e allowed to commute their personal services for payments in money or kind.^^ And it was not to the lord's interest to get rid of a tenant. It has been noted that only for 48 ENGLISH CONSTITUTIONAL HISTORY two purposes would he wish to do so— to lay out a forest or I P. and M._Xo found a monastery. But evidence does seem to show^ that, 1. 360. ^j. gj^y j.^(.g ^g ixxne. went on, the class of landlords — the monasteries — which, while most tenacious of their rights, would also be more likely to maintain a high ideal of justice, did not hesitate to increase the burdens of their villan tenants. The only place where a villan could get redress was,iji_Jhe manorial court, and it cannot have been easy to obtain a judgement against the lord in his own court. The ordinary agricultural obligations of the tenants were of three kinds — {1) Week-work, or labour on the lord's demesne or two or three days a week during the greater part of the year, and for four or five days in the summer time. This ^, ,. . labour ranged from the ploughing incumbent on the holders of Obligations . , *= , , ■, • r , ^ ^ of manorial virgates down to the manual duties of the cottars and other tenants. humble tenants. Perhaps at first all obligations to service came under the head of week-work ; but at an early period the socage tenants and, in imitation of them, the more suc- cessful villans must have obtained an exchange of such onerous duties for (2) Frecariae, Precationes or Boon-days, work during the harvest when .the tenant's whole time was at the lord's disposal. It was no inconsiderable check upon the lord that manorial custom carefully defined the amount of a day's work, and exacted from the lord food* of a certain kind and quantity. We should note that many tenants owed both week-work and precariae. The third kind of obligations may be distinguished as (3) Gafol or tribute, fixed payments in money or kind which, though often most minute, reached in the aggregate to a con- siderable sum. The greater number of such payments have '^ P. and M. been concisely divided into- {a) such as were based on the J- 348- lord's right of jurisdiction, e.g. tithing-penny or wite-penny, and (b) such as might represent some return for a share in the lord's rights over wastes and waters, e.g. fishsilver or wood- silver. To these obligations must be added others of an occasional nature, such as tallage or merchet, which can perhaps best be dealt with rather as the outcome of the villan's personal status than of his tenure ; ' fold-soke ' which forced the tenant's sheep to lie upon the lord's land for the sake of the manure ; and the aggravating and profitable ' suit of mill ' which bound the tenant to take his corn to the lord's mill for grinding. ^oj^d^ cp uliGx*= THE LAND AND jITS INHABITANTS 49 For the most part these obhgations were imposed upon free Commuta- and unfrec tenants alike. Doubtless from the first there were t'°" "^ o^'li- 1 — .1-1,11 1 • 1 , • 1 gallons. tenants ot holli classes who paid rent m money or produce^ but the majority gradually commuted their personal services for such payments in stages which may be traced through the manorial records. An occasional commutation of a single kind of Laskjn_any given year would be followed in time by the permanent commutation of that task, and so by degrees of alTtTie various personal labours of that particular tenant. Such commutation was a mere matter of calculation on the part of the lord. The unwilling service of the holder of a considerable tenement, especially at harvest time when he required all his labour on his own fields, would exchange to the benefit of the Jord fo r an equivalent rent, and the work of the lord's demesne would be done by the smaller tenants and especially by free labourers, who could be hired to work at such times as they could spare from the cultivation of their own lands. „This increase in the number of free labourers was brought about chiefly in three ways — all at the initiative of the lord. Thus the lord would (i) carve out^^ortro^ TrbniLKis own demesne, / , lands, or (ii) encl ose parts of the waste and let them at money /^ , rents , often to servants occupied in the administration of the manor. But perhaps the chief creation of free tenancies came from (iii) the commutation of personal services. It was on the -^ i holdings of the socage tenants that the process was begun, and its extension to the villans would, at first at any rate, tend to approximate their position to that of the free tenants in whose path they so closely followed. Thus the payment of money rent as contrasted with personal service would soon cease to be, if it ever had been, a test of free tenure. The only reliable Test of free test would seem to have been whether the king's court would or ^"^ unfree would not take any notice of a particular tenant. The enumera- tion of services afforded no clue ; the fact of commutation was common to free and unfree alike. But action or refusal to act on the part of the king's court was the effect and not the origin of the particular tenure. The judges would be guided by the fact of the certainty or uncertainty, not of the amount of the services to be rendered by the tenant, but of the particular kind to be rendered on a particular day. It was not so much that his obligations were without measure (for they were all strictly E 50 ENGLISH CONSTITUTIONAL HISTORY 1 P. and M. i. 351-4. Origin of copyhold tenure. 2 Pollock, Land Laws, 50. Villan Status. fixed), but that, in Bracton's words, ' he knows not to-day what he should do on the morrow.' Thus it was only by constant reference to the lord's will that his daily duties could be settled, while even if the lord did choose to go behind manorial custom and to increase the obligations, the villan was practically without remedy.^ The manorial custom which secured the villan in such rights as he possessed must have become greatly strengthened by the reduction of those claims to writing. The use of written rolls spread from the king's courts to the manorial courts, and on the records of the latter were gradually entered the lord's dealings with his villan tenants. To these records the villan could appeal in the manorial court even against his lord, and although for many generations to come the king's judges would put no limit to the lord's arbitrary rights, yet it must have been peculiarly difficult for a lord to violate his own written and witnessed agreement with his tenant. Thus the tenant who hitherto had held by custom of the manor, and was in consequence sometimes described as ciistuviarius, was now thought of as holding by roll of court, and even before long, when he was given a duplicate of the entry which bore on his holding, by copy of court roll. This process seems to have begun about the middle of the thirteenth century, and two centuries later the customary tenant has become the copy- holder known to modern law. It is worth noticing that one writer traces the origin of copyhold tenure to ' the old English landholders who had inheritable titles according to local custom (i.e. owners of folkland), evidenced not by writing but by the witness of the neighbours, and paid dues and services to a lord.' - Whether we are or are not justified in looking so far back for the origin of the copyholder is in any case becoming a matter of merely antiquarian interest, for the power of en- franchisement conferred within the present century by statute on both lords and tenants is rapidly extinguishing the remain- ing copyholds. So much for villan tenure : it remains to say something of ihQ persotial status of a villan holder. The nominal extent of the lord's powers over him have been already touched on. He was absolutely at the disposal of the lord ; for, although the villan could not leave his land without the lord's permission, THE LAND AND ITS INHABITANTS 51 t he lord could se ll the vill an jwith Jiis_tenement. Unlike a chattel, be belonged to the manor and formed part of the freehold. The villan was also liable to sundry heavy payments such as tallage and special aids ; and he laboured under many disabilities such as merchet or the fine for marrying his daughter, a fine for selling a horse or an ox, the liability to be tallaged high and low (de haut en bas), and the necessity of serving in his turn as reeve.^ But the limitations to the lord's power \ P. and M. far outweighed these disadvantages. Although towards the \?}^ ' lord alone the villan was in a position of serfdom, yet even as agamst'iiis lord, he was protected from the forfeiture of his "■"^walnage ' or instruments of labour and from injury to life or Tirnhj ^ while the power of the lord in the exaction of his services applied in general not to the quantity, which was settled and recorded, but to the kind of work which the villan should perform. _Moreover^beyond Jjie bounds of the manor and away_from the power of the lord the influences which made '"for fre edom were irresistibly strong. Not only was there considerable migration, despite regulations to limit it and the exaction of a poll-tax (chevagium) by the lord in maintenance of his claim, but away from the manor a villan was treated as a freeman, so long as his servile status had not been proved. And The procedure in such trials was also favourable to liberty ; "for the only proof accepted was the acknowledged servile status of the ancestors of the person claimed. Thus the position of the villan as regards his lord has been described as a condition of unprotectedness rather than of rightlessness.- And yet this " Ibid. i. was only true of the villan in a civil capacity. From the reign ^ of Henry II at least, the criminal law made practically no distinc- tion between free and unfree classes. The extant pleas of the royal courts scarcely reveal a consciousness or afford a proof of a distinction between the two. There seems to have been some difference in the payment of the Murdrum and in the method of Ordeal ; but early in the thirteenth century both these dis- appeared. On the other hand, villans, as well as freemen, could use the royal courts to gain redress for injuries; the frankpledge ~-^an essentially free institution in idea and origin — came to be composed chiefly of villans, who through its agency became connected with the Sheriff's Turn ; while the ordinary courts of the hundred and shire were attended by a representative 52 ENGLISH CONSTITUTIONAL HISTORY The extinc- tion of vil- lenage. 1348. e.g. Thorold Rogers, • S/x Colts, of IV. and IV. 253, and Cun- ningham, Etig. Ind. and Com. '■ 357- - Ashley, Econ. Hist. vol. i. pt. 2, 266. body composed of the reeve and four villan tenants from each vill. We are now in a position to understand the full significance of the central fact in the economic history of mediaeval England — namely the Black Death, with its necessary accompaniment, the Peasant Revolt. Towards the middle of the fourteenth century the success of the villans in commuting their services ^seefris to have encouraged those who Tiad hot been so success- ful, to refuse the performance of their services. Even with Hie customary tenants there was much dissatisfaction at the lord's retention of liabilities like the merchet and of small payments of various kinds to mark their servitude, ^t such a moment the visitation of the Black Death swept away an almost incredible proportion of the population, and, in con- sequence of the resulting scarcity and costliness of labour, the lords would no doubt use the manorial courts to enfor ce t he performance of such services as had not been commuted and the strict payment of all commutation fees,jwiiile by the Statute ofT-abourers the governing classes tried to stereotype the old rate of wages. There is no need to suppose with many writers^" that tlie lords attempted to demand the performance of the services which had been commuted. The Peasant Revolt (1381) which followed was^-to'"no~< small extent fanned by the doctrine, founded on CWycliffe's teaching, that, as it was lawful to withdraw tithes from priests who lived in sin, so ' servants and tenants may withdraw their services and rents from their lords that live openly a cursed life.' The demands of the villans "varied from place to place, and the most common of them was, in words, that land should be no more than fourpence an acre ; but their real desire was for a free tenure of their land by the abolition of the remaining servile payments exacted by the lord. This, rather than the desire to obliterate the records of the services already commuted,- explains their attack upon the manorial rolls. The revolt failed immediately^ and perhaps even its ultimate success in destroying mediaeval serfdom was not so great as is generally assumed. The Land and Stock lease, by which the lord stocked the lan^ for his tenant in anticipation •»£4he day when he could resume the old methods of cultivation T^ave way, after an experiment of some seventy years, to an extension of the system of tenant-farming on leases THE LAND AND ITS INHABITANTS 53 which had already^ been in use. But rernnants of villenage ^ M. Kova- were to be fo und perhaps as long as feudal tenure lasted,' and 'evsky, methods of common cultivation, whatever their origin, existed olo^ncal i n differe nt parts of I'^ngland down to the beginning of the Review, ninetee nth century. '■ ^^'^' § 6. The causes which broug^ht about the commutation of Veomen services for rents tended also to reduce the profits of landlord holders. "cultivation. It has been reckoned- that, as a result of the Black . — ■■■ ■ — ' rill" Thorold Death and the rise in the price of labour, such profits had sunk Kogers, from twe nty to about four per rent. l\eJ^dlords sought refuge Six Cents. in the creation of leaseholds. Tluv cea§&d-to-be cultivators and "jy^ ^^" beca me mere rent receivers. But in the fifteenth century along- side of the leaseholders and copyhojders there appears a third impor tant class, namely the }\'Of/!c^';'S\\\o on the whole repre- sent the small freeholders of the feudal manor. The limit of the class may be said to lie between those who were eligible for the magistracy and those \vho possessed the franchise and were called to serve on iuries. A statute of 1430 limited the ^ ^^"- ^'^• c. 7. parliamentary franchise to freeholders of the annual value of forty shillings. But the yeomen must have found their way into Parliament; for a statute of 1445 forbids the con- 23 Hen. VI. stituencies to return valetti or esquires as their members. Yet ^' ^' notwithstanding this apparent check, they were popularly regarded as the mainstay of the country. Fortescue, the Lancastrian judge, in a laudatory passage of comparison between England and the Continent, draws attention to their flourishing state, and is followed by the social writers of Elizabeth's time. But in the fifteenth and early sixteenth centuries, the market commanded by English wool on the Continent encouraged the formation of large sheep farms. This led to a diminution of the arable land^and the enclosure oFcomiTion lands for the lord's benefit, j^roceedings which bore __hard!jIOiT the villan and the free labourer alike ; for they led to^th£. -eviction of the former and lessened the demand for agricultural labour. The freeholders too could not fail to be affected by so great a change, though the rise in prices which followed the discovery of the American mines affected them less than almost any class ; for, while they obtained a greater price for their produce, their labour, supplied as it was by themselves and their families, did not increase in cost. At 54 ENGLISH CONSTITUTIONAL HISTORY 1515- 1534- 1689. ^ Toynbee, liidiist. Rev. 65. Common Lands. the same time, the legislature, representing the Crown and the landed gentry, did everything in its power to protect them. Small holdings were encouraged, and a maximum limit was set to the size of a flock of sheep, and, whatever the cause, the class of yeomen was saved to form the backbone of the parliamentary party in the Civil War. But their day was gone by. Contem- poraries reckoned them as forming one-sixth of the popula- tion of England in the seventeenth century, and at its close their actual numbers were estimated at between 160,000 and 180,000. But as a class they were ignorant and conservative in agricultural habits, and after the Civil War they took no political initiative. Thus they lent no aid to the Revolution of 1688, which paved the way for their extinction. For, the Revolution was the victory of the great Whig landowners, who in their jealousy of the rising mercantile class — their political allies — spared no efforts to keep ahead of them in the race for wealth. To this end they did everything for the encouragement of agriculture. They offered a bounty on the export of corn ; they passed bills through Parliament for the enclosure of common fields, and, as individuals, they introduced on their estates improved methods of cultivation from Holland. The result was most disastrous to the yeomen.^ The intro- duction of the factory system destroyed those domestic industries on which they had fallen back in bad times ; and the decay of the small country towns, which followed on the consolidation both of industry and of farms, deprived them of their markets. At the same time, they were too poor, if not too ignorant, to take advantage of the improved methods of agriculture, and in their poverty they were bought out from their small freeholds by great landowners or wealthy founders of new families. The mention of enclosures brings us to the important sub- ject of common lands from which the enclosures were made. Rights of cotnvion were of various kinds ; but here we need concern ourselves only with the most important — common of pasture, or the right enjoyed both by freeholders and by villans of turning out a certain number of cattle to feed either on the waste of the manor, as was most usual, or on the fields after the hay harvest was gathered. These latter were often called ' Lammas lands,' because it was on old Lammas day (August THE LAND AND ITS INHABITANTS • 55 12) that the enclosures were removed; and the right exercised over them came to be known in law as ' common of shack.' The right of common enjoyed by the freeholders was chiefly of Legal two kinds — (1) common appendant or annexed by custom to ^^'^°''y °^ the freehold as forming part of the manor, and (2) common common. appurtenant belonging by definite grant to a freehold, which did not necessarily form part of the manorial system of cultiva- tion. Of these the former would be exercised over both the Lammas lands and the waste, the latter as a general rule over the waste alone. But the villan tenants, and after them the copyholders, enjoyed similar rights of common extending over both classes of land, though their rights rested merely on the custom of the manor. The legal theory of the manor gave the ivhole estate into the herd's hand subject only to the diminution of such rights as he might have granted away. Thus whether it was freeholders asserting their claim to the Lammas lands, or copyholders turning out cattle upon the waste, it was only by permission of the lord that these could be done. Such per- mission however, once given, became binding as the common law of the land, and although legally it was only the freeholders who could enforce such rights, they carried with them the interests of the vfllans, in conjunction with whom the pre- vailing customs had been defined and enforced in the manorial . court. Thus any freeholder with a right of common could \ prevent his lord from appropriating any portion of the common \ land, and could enforce his right in the king's court by a special process known as assize of common.^ The Statute of Merton ^ P. and M. in 1236 first all owed th e lord to approve, i. e. to enclose '• ^^^* with a view to profit, the common lands of the manor, provided 20 Hen. III. he left sufficient for the tenants' wants, a point which may have been settled by a jury according to local custom. But this only applied to commons appendant, and the lord was not able to touch commons appurtenant until a clause in the Statute of Westminster II (1285) allowed him to deal similarly 13 Ed. I. with such of them as were held by prescriptive right, although '^' ^ he could not revoke any definite grant made by himself or his predecessors. But this legal theory of the right of common was perhaps Historical untrue to history, and certainly unjust in practice. Apart ^'^'S'"- from the unfortunately recurring question of the Roman 56 ENGLISH CONSTITUTIONAL HISTORY origin of the manor in England, it has been held that although some manors may have sprung from the voluntary dependence on a lord of freemen and freedmen who would accept all privileges at his hands ; yet a great many of the manors now or formerly existing represent ancient commu- nities in which, little by little, the authority of the com- munity was engrossed by the most considerable man in it, until he became the lord and the other land-holders sank into ^Compare his dependants;^ and that the privileges of the former would Pollock, naturally be modelled on the customs which kept their ground Land Laws •', . ^, , , . . , '^ ° . (istedit.), among the latter, ihus whether it is the common system of with cultivation, or the rights of common enjoyed by the in- 12 habitants of all manors, they equally represent the itnposition of the lord on a free village community^ and his successful en- croachment on their primitive rights. It may, however, be doubted whether the community as such ever had any primitive rights. A system of common cultivation may well ^be the outcome, not of the abstract idea of common ownership or kinship, but of primitive agri- cultural needs, and it can be maintained not by any legal recognition of the communal custom, but merely by the - Maitland, common law of trespass.'- It is because of this necessary Sminval of economic interdependence that we find the lord treating Commtmi- his villan tenants as members of a community having duties ties. Law towards himself; he imposes amercements on them, he lets c^uart. them his demesne lands on lease. But the money to be 224-22^. collected, whether for the amercement or the rent, is collected from individuals with separate holdings and a responsibility for payment proportionate to the size or character of their hold- ings ; it is a ' joint and several ' liability for the whole amount of the necessary payment. The same principle applied to the apparently communal rights of the villan tenants. They were not rights which attached to the community as such, but the tenants in villenage enjoyed them, e.g. rights of pasture, because those rights were treated as part of the tenements which they held. In fact the inhabitants of the original manors, if they began as a body of freemen, regarded themselves not as a community of common owners but as a group of co-owners : and rights of pasture were, therefore, rights attached to cer- tain individuals, which were exercised in common because THE LAND AND ITS INHABITANTS 57 more valuable thereby to each, but nevertheless as ' sexera],' ^ P. and Af. separate rights. ^ i- 619-620. The practical injustice of the legal theory of the origin of Enclosures. common rights is clear from the refusal of the law to consider the claims of any other inhabitants than freeholders or copy- holders of the manor, even though the privilege may have been enjoyed unquestioned for an unknown length of time ; while it was not until 1836 that the legislature betrayed the least consciousness that the exercise of such rights, as affected by the question of enclosures, concerned any except the lord and, in a less degree, the manorial tenants. But by that time the mischief had gone too far for remedy. A combination of circumstances led to the accumulation of those large estates of the fifteenth century which threatened, through the prac- tices of livery and maintenatice, to reproduce the worst evils of unmitigated feudalism. The interest of the landowners caused them to throw together large tracts of land. Nothing hindered this policy so much as the system of common culti- vation ; and the abolition of the system necessitated the eviction of the tenants who practised it. These would now be chiefly the remains of the old tenants in villenage or, as they were coming to be called, the customary or copyhold tenants. Under Edward IV the law courts seem to have begun to take cognizance of the rights of the heir of a customary tenant who held a grant of inheritance ; but — though this is a point of much dispute,- — it is doubtful whether there was any legal '' Cf. I. S. protection until a much later period for the ordinary villan. Leadam, in It has been maintained that, without incurring legal penalties. Hist. Soc'. the lords could, throughout the fifteenth century, evict all 1892, and copyholders, and in the early years of the sixteenth century J^\/.^- such of them as held no grants. Even into the reign of Henry VIII there is evidence of wholesale evictions; nor does the Tudor legislation, which tried to stem the current in the direction of great estates, betray the least consciousness that the practices against which it is aimed were in any sense unlawful. 'They (the Acts of Parliament) lay down that " houses of husbandry " ought to be maintained, on the ground 3 Ashley, that it is desirable that men should find employment; but -£"<"". they never provide means by which the copyholders could :^"^" ^'*^'' enforce their legal rights, if they had any.' ^ 280. 58 ENGLISH CONSTITUTIONAL HISTORY Their effect on (i) the landlord and farmer. (The Corn Laws. ) But although the result of these forcible enclosures was a displacement of large portions of the agricultural population, and was therefore serious as far as it went, yet no great per- manent harm was done. The population was not increasing so as to outstrip the means of subsistence : the extraordinary maritime development of Elizabeth's age gave occupation to the hardier spirits ; while the spread of textile industries among the cottage population in the seventeenth century helped to strengthen the position of small holders of all kinds. But the desire of the landed aristocracy to keep pace with the growing wealth of the merchants and the consequent encouragement of the proffered bounty to agriculture, caused the landowners to do all in their power to foster the growth of great estates. For this purpose, as in the matter of the bounty, recourse was had to Parliament ; and, since commonable rights had now become recognized by the law courts, it needed Acts of the legislature to legalize enclosures. In this way three million acres of common land were dealt with by the land- lords in the eighteenth century, and six million more in the early years of the nineteenth century. But the growing feeling, possibly of complex origin, that such enclosures were an in- fringement of the rights of the public and not of the com- moners alone, has led to the resistance offered in courts of law and to the statutory curtailment of the landlords' powers. Of the details of these nothing can here be said. We' need only notice some of the more serious results. Despite the greed of the landowners, and despite even the agricultural improvements which they introduced, the population grew so fast that, after the middle of the eighteenth century, the importation of corn began to exceed the amount exported; in 1773 '^^e liberty to export was curtailed, and in 18 14 the bounty on export was abolished. But the growth of population had an even more serious result for the landed interest. Together with the bounty of five shillings per quarter so long as the home price was not above 48 shillings, in the interests of the home growers the legislature maintained the prohibitive import duties which had been imposed first in 1670. But the feeling of the country was in favour of using the import duties for the purpose of maintaining a level price. By an Act of 1773, associated with the name of Burke, this was fixed at 48 THE LAND AND ITS INIIAIUTANTS 59 shillings, which in 179: was increased by the pressure of the farmers to 54 shillings, and after the great war in 181 5 to 80 shillings, above which the import duties became merely nominal or altogether ceased. But these attempts completely failed ; for, while the price of corn during the Continental wars of 1 792-18 1 5 rose so high that, in order to feed the starving people, Parliament had to offer bounties on importation, for the succeeding decade it fell much below the limit selected by the legislature. In 1828 the idea of a sliding scale, attri- buted to Canning, fixed a varying tariff of import duties until the price rose to 73 shillings, when the duty became nominal. But this had no better effect than the previous simpler system ; and in 1846 Sir Robert Peel, after one attempt at readjust- ment of the sliding scale, became a convert to the principles of Cobden, and almost with a single Act removed the import duties altogether. Whatever the real cause may be, the schemes of the landed interest to manipulate first the export and then the import duties to its advantage have redounded to its own confusion. The interest was perhaps a little too much confined to that of the landlords and farmers ; for, meanwhile, a second result of the enclosure of the commons had been the rapid impoverishment of the agricultural labourers and their severance from the land. We have already noticed the decay of the yeomen. But if the en- closures bore hardly, as undoubtedly they did, upon them, much more were they the cause of suffering to the tenant of a mere cottage and garden. It has been said that since the break up of the manorial (2) the system the most prosperous time for the agricultural labourer l3-°""''ers. was the fifteenth century, and in a less degree the first half of the eighteenth century ; while the periods of his greatest degradation were the first half of the seventeenth and the first quarter of the nineteenth century.^ But the policy of the ' Thorold landlords in the formation of large sheep farms, the known f^og^rs, op. . . nf. 522. contmuance of villenage, and the record of wholesale evictions may well make us pause before we assent to the prosperity of the labourer under the Lancastrians ; - while it has been '^ Cf. Soda! pointed out that, had there been any severe and widespread ^"^^f"^' distress at the beginning of the seventeenth century, it would have coloured such democratic risings as those of the Levellers 6o ENGLISH CONSTITUTIONAL HISTORY ^ Ashley, Pol. Set. Qitart. iv. 404. The Land Laws. and others during the Commonwealth.^ As a matter of fact, the continued existence of commonable rights and the spread of cottage industries must have placed the labourer in a fairly comfortable position ; and although the policy of the great landowners of the eighteenth century deprived him of the former, and the growth of the factory system extinguished the latter, the rise in wages which followed the introduction of improved agricultural methods, prevented the real change in the labourer's condition from becoming apparent till towards the close of the century. Then the enormously increased rent and prices went to the benefit of the landlord ; and the labourer, debarred from an increase of wages through the vicious action of the old Poor Law, found himself reduced to starvation point, with no means of keeping the cow or the geese which had made up to him for the deficiencies in a weekly wage, and no chance of supplementing his agricultural work by the produce of his loom. At the same time, until 1824 com- bination was treated as conspiracy, and until 1834 the old Poor Law continued to supplement the wages out of the parochial rates. § 7. So far we have investigated the various kinds of tenure and modes of agricultural life, which emanated from the manorial system of the middle ages. It remains to enquire how far the Law modified the conditions of the only species of feudal tenure which at first it recognized, namely, that of the freeholders, and in particular of those who held on condition of military service. It has been shown already that in the feudal theory a life grant of an estate was alone possible ; and although circum- stances and convenience caused the establishment of primo- geniture both in custom and in law, and ultimately for both military and non-military estates alike, yet the theory was so far observed that inheritance by descent only existed when it was expressly specified in the original grant. Thus interest in land was of two kinds — for life or in fee ; for, with the establishment of primogeniture the word feuduin came to denote rights of inheritance. But the difference between the two kinds of interests was not thought of as a difference in quality of ownership. Behind the claims of every tenant for life there must of necessity stand the claims THE LAND AND ITS INHABITANTS 6 1 of a tenant in fee ; but none the less the only difference between the two is that the interest of the tenant for life is one of definite duration, whereas that of the tenant in fee runs on for time which no man can define.^ Now, the most practical ]r. ami M. test of ownership lies in the power of disposing at will of the "• 3- thing owned. The feudal theory of life ownership was so far retained as to render it impossible to leave land by will (alienation ' post mortem ') ; but the circumstances attending the Norman Conquest caused the recognition of the right of alienation 'inter vivos' — the grant or sale of land during the owner's lifetime. For it would be only by such means that the tenants-in-chief of the Crown would be able to secure the proper discharge of the military service which they owed to the king, or that the Church w^ould be induced to lend its powerful aid to the Crown ; while the growth of a class of pro- fessional lawyers would raise a great influence in favour of the free alienation of landed property. Such alienation would take chiefly one of two forms - — it might be alienation by ^ Ibid. i. (i) substitution of one tenant for another, in which case there 3io- would be no alteration or readjustment of services, but the lord might get an incapable and uncongenial tenant in the place of one with whom he stood on friendly terms. The commoner form of alienation would be by (2) sidn/ifeudation, or grant of a portion of the estate to be held of the grantor. In such a case the lord's rights would not be destroyed ; but since their efficient discharge might well depend on the behaviour of the sub-tenant whom he could not control, their exaction might become precarious, and since the terms on which the new tenant held might be quite different from those by which the grantor held of his lord, that lord's rights might be seriously diminished in value. For when the time came for the exercise of such profitable rights as were implied in the words wardship or escheat, instead of having absolute control over the tenement, the lord might find the land already occupied by tenants from whom he was bound to accept the perhaps utterly insignificant rents in return for which they had been enfeoffed or invested with their land. The power of alienation being once granted, the alienor Early had it in his power to regulate the future devolution of the f^f'^s of land by the form of his gift (forma doni). His liberty in this by'^^ift'"" 62 ENGLISH CONSTITUTIONAL HISTORY respect seems to have been regulated by the law merely in a negative way — that is, everything was permissible in the form of an alienation except such as the law expressly forbade. But the interpretation of the terms of any particular alienation was in the hands of the lawyers, and, as will be seen, they did not lose their opportunity. The forms in common use which call for remark were of two kinds — (i) a gift of the Fee Sifnple 1 P. and M. Absolute by a grant to a man and his heirs} At first such a gift i. 13-14. ^vas taken to mean what it said, and a tenant holding by such a grant could not alienate without the consent of his heir-at- law. But in the early years of the thirteenth century such consent seems no longer to have been necessary, a man's heirs were interpreted to mean those whom he chose to appoint as such, and the form itself was commonly changed to ' his heirs and assignees.' But this very free interpretation of the lawyers was not at all in accordance with popular opinion, and in the 1217. second reissue of the charter under Henry III in 12 17, a small attempt was made to restrain the absolute freedom which was allowed, by a clause which prohibited a freeman from disposing of so much of his land as would prevent him from - S. C. 346. doing, with the remainder, the service due to the lord.- In the § 39- same document the special prohibition of such alienation in favour of ecclesiastical corporations began the Mortmain laws, which will be dealt with under a separate head. The king made use of the feeling against alienation to establish as a prerogative right the necessity of his licence to his tenants-in- chief for such alienation of their lands. But the efforts of those tenants-in-chief in the charter of 12 17 completely failed. Usually, however, it has been supposed that Edward I allowed his barons to triumph in the Statute of Westminster III, 1290. commonly called ^tda Emptores. This enacted ^ tha^ every creation of a new manor should place the_ne.w, tenant in the same relation to his lord's lord as was occupied by the lord who had enfeoffed him. The effect of this, of course, was to put an end to the creation of new manors by subinfeudation. But recently it has been pointed out thar the statute also compelled the great barons to grant to their tenants complete freedom of alienation by substitution, and that since this extended even to the substitution of several tenants for one, the resulting difficulties were precisely the THE LAND AND ITS INHABITANTS ' 63 same as had arisen out of subinfeudation, and consequently the benefit of the statute to the great lords was not so com- plete as is commonly assumed/ At any rate, however much ^ r. and M. or little other lords gained, the king's prerogative rights were '• 3'^- untouched, and it was only by special legislation that in years to come the uncontrolled exercise of the king's claims could be brought by degrees within reasonable limits. It was just at the very time when this disingenuous inter- pretation of the meaning of the word ' heirs ' was gaining acceptance that a second form of gift became common, whicli attempted to limit the devolution of land to a special class of heirs by (2) a grant made to the heirs of the body of the original donee,- i.e. his direct descendants. But the lawyers were not 2 ibid. ii. to be beaten. At the beginning of the thirteenth century it i5-i9- was not uncommon for a grant to be made to a man and his heirs ' if he shall have an heir of his body,' and such a grant was interpreted by the lawyers to imply, and consequently to depend for the validity of its limitation upon, the condition of the birth of such an heir. If he was born, and whether he remained alive or not, the condition was fulfilled, and what had hitherto been a conditional gift became an estate in fee simple absolute of which the grantee could dispose as he wished. The opinion of the great lords on this reading of the law is to be found in a clause of the Petitions of the Barons in 1258,^ but no answer seems to have been given ^ ^. C. 386 to their complaints until 1285, when the Statute of West- § ^7- minster II provided in its first sectio n, known as ^e_ Donis '^ ^' Cottditio?ialil)us, that, if a conditional fief had been alienated, the heir could, on the death of the grantee, recover the fief from the person to whom it had been alienated ; while, if there was no heir alive, the original grantor or his heir could recover it from the holder as if issue had never been born. . The effect of this statute was to create not only a limited Restraint but also an inalienable estate ; and since it did not pretend to °." -^l'^'"^" be a fee simple either absolute or conditional, it was regarded as a new species of estate and called a Fee Tail, i.e. a fee or estate, taille or cut off from the fee simple and the freedom of disposition which accompanied it. Thus, whatever happened during the Ufetime of the holder of the estate, his heirs were bound to inherit ; no disposal of it could bar their claim, for 64 ENGLISH CONSTITUTIONAL HISTORY ' Pollock, Land Laws, 68. New methods of alienation. (I) Appli- cation of Warranty. •-■ Digby, I/ist. Laiv Real Prop. , 4th ed., 8o, note. the estate was entailed on them and they were the tenants in tail. ' Such is the legal and only correct meaning of the term entail which nowadays is constantly used to express the far more complicated scheme of modern settlements.'^ But from the very first this effective check on the power of alienation met with considerable resistance. The inviolability of an entail rendered titles insecure, since an old entail might be proved and no time could bar it. Moreover, not only was the king unable to punish treason by forfeiture of an estate in tail, but the smaller landowners, as they became impoverished in the Wars of the Roses, increasingly felt the drawback on the power of free disposition. Thus all classes, except the great landowners in whose behalf the statute had been passed, were interested in obtaining a relaxation of the practice. The nobles, however, were strong enough to keep what they had won ; and only indirectly could the wishes of their tenants or the ingenuity of lawyers break through the hated barrier. The first method employed for this purpose was the appli- cation, within necessary limits, to estates in fee tail of doctrines originally devised for the use of tenants in fee simple. By the > doctrine of Warranty., which in the case of personal property or chattels dated back to early Teutonic law, a purchaser whose possession was disputed would ' vouch to warranty ' the vendor of the article, so that the vendor would be obliged either to defend his title or, if the claimant established his right, to make recompense to the purchaser of the article from him. ' In the development of the English law of land the doctrine of warranty was applied mainly to the obligation on the part of the donor of land and his heirs to defend the obligation of the donee and his heirs ' - to the extent of giving, if necessary, v to the representative of the donee lands of equal value to those of which he had been deprived. Now, the holder of an estate tail was regarded as the owner of the freehold within the limit of his lifetime ; if he went further and alienated the fee simple, which was legally beyond his power, yet the burden lay with his heirs of establishing their claim by process of law ; while, if the alienation had been accompanied by a warranty, those very persons who on the alienor's death would make a claim, would find themselves bound by their ancestor's action to defend the title of the present holder or to compensate him, THE LAND AND ITS INHABITANTS 65 if evicted, with lands of equal value. Thus ' it was often ' Pollock, possible for the actual possessor of land to give to a purchaser -^««^ a better title than he had himself '^ ^^""^^ This same doctrine of AVarranty was again brought into use (2) Re- in a more effectual method of ' barring an entail' which was ^°^^'"^^' established in the fifteenth century. A friend of the tenant in tail would claim to be the holder of the fee simple, and would bring an action against him for its recovery. The tenant in tail would then vouch to warranty another friend who im- personated the donor or heir of the donor of the estate in tail. After some further forms, which need not be specified, the second friend, representing the original donor, would dis- appear ; judgement would go against him by default, and the lands would be awarded in fee simple to the first friend, who would convey them to the former tenant in tail as an estate in fee simple. This elaborate process was called a Common Recovery, and its applicability to estates in fee tail is generally, though not without question,^ agreed to have been established 2poiiock, by the case of Taltarum in 1472, whence it lasted as a mere ^«^«^ matter of form until an alteration of the law in 1833. Two im- g_ j^^^g portant points remain. The only claim to compensation which the dispossessed heirs of the tenant in tail might have, would be against the second friend who had been vouched to warranty, and who in the eyes of the law would have to provide for the heirs lands of equal value with those of which they had been dispossessed. This was a serious liability ; but it was practically nullified by the customary selection of a humble official of the court to play the part required. Meanwhile, there was no legal guarantee that the first friend, who by decision of the court was the holder of the fee simple, would fulfil his part in the understanding and dispose of those lands at the will of the original tenant in tail. But by the end of the fifteenth century the dictates of honour had given way to the jurisdiction of the Chancellor ; and the elaborate ingenuity of attorneys gradually secured the safe working of the whole procedure. A third method of 'barring an entail' was the use of(-) Fines. a process known as a Fine of Lands. This was also a collu- sive suit, differing from a Recovery both in being an action not pursued to judgement, but compromised by the defendant abandoning his claim, and in its less complete and effective Y 66 ENGLISH CONSTITUTIONAL HISTORY barring of all possible claims. The effect of the process was to bar the claim of all who did not urge it within a year and a day. It was abolished under Edward III, but restored under 4 Hen. VII. Henry VII, in the Statute of Fines, with an extension of time ^' "4- to five years. Its application, however, to the case of tenants 32 Hen. in tail was not definitely allowed until 1541. The process was VIII. c. 36. fjj-|j^iiy abolished, together with that of Recoveries, by the 3&4 Act of 1833, which allows a tenant in tail, by the simple, if Will. IV. costly, enrolment of a deed in Chancery, to make himself or '^' ^'*' any one else a tenant in fee simple. Uses. The attempt to make an estate inviolable had thus broken down before the ingenuity of the lawyers, and it was necessary for the great landowners, whether sole or corporate, to defend their property from legal liabilities by discovering some more subtle means of evading the Common law. From the time of the Norman Conquest onwards cases are found in which lands were conveyed to be held in trust for some particular person or purpose. The method was not unknown among private owners, but it was employed chiefly to secure endowment for some particular person, whether private or official, or some especial portion of the work — such as library or infirmary — in 1 P. and M. a monastery.^ It was popularised by the Franciscans whose ii. 226-230. special vow of poverty precluded them from accepting endow- ments. But there was nothing to prevent a pious donor from leaving land to the corporation of a borough who should hold it ' to the use of ' the friars. This system of double ownership was now freely adopted by the great landowners, and by the practice of Uses, as it was called, an estate was left to a man and his heirs for the use of some one else and his heirs. Such a dis- position could of course be made to take effect either in a man's lifetime or after his death ; and by this means the power of regulating an interest in land by will, which had died out at the Conquest, was practically recovered. The legal owner, who alone was recognized by the Common law, was technically called the feoffee to uses ; and the beneficial owner, who had no legal standing, was distinguished as cestui que use. Thus the right of the beneficial owner rested at first merely on moral or religious obligation, so that it was often possible for the feoffee to uses to suffer forfeiture, to alienate or to create charges upon the lands, and thus to defeat the intention of the original THE LAND AND ITS INHABITANTS 67 donor without any remedy on the part of the unfortunate cestui que use. But with the growth of the equitable jurisdiction of the Chancellor came the enforcement of the right of cestui que use by legal means ; for, as an ecclesiastic, the Chancellor would especially concern himself with anything which bound the conscience, and, as a churchman, would be interested in all evasions of the Act of Mortmain ; w^hile as ' depositary of the undefined prerogative of the Crown ' he would be petitioned to intervene against any individual too powerful to be touched by the Common law or in cases for which the Common law provided no remedy. Moreover, the Chancellor acted by writ of Subpoena, commanding the person complained of to appear before him 'under penalty'; and his decrees were from the first enforced by 'attachment,' i.e. arrest and imprisonment for contempt of court. This gave the Chancellor a power, not possessed by the common law courts, of enforcing contracts ; and, in the exercise of that power, he would not only restrain the feoffee to uses from dealing with the land as he liked to the detriment of cestui que use, but even bind him over to carry out the lawful wishes of cestui que use with regard to the disposition, by sale or otherwise, of that beneficial interest, whether during lifetime or in accordance with the will of cestui que use. But this legal enforcement of Uses only served to stereotype Results of many unfortunate evils ; and legislation was necessary to check their en- the application of the system in many possible directions. For, '"^<^^™^"'^- until the restraint imposed by an Act of 1391, lands could be jr j^j^ jj held by an individual to the use of a religious corporation, and c. 5. the Act of Mortmain could be thus evaded. Again, a debtor, by making over the legal ownership of his land to another who should hold it to the debtor's use, very effectually con- trived to evade his creditors, until an Act of 1376 restrained 50 Edw. III. such collusive conveyance with intent to defraud. The practice ^ 6. was equally convenient for the protection of a disseisor, i.e. a wrongful possessor of land ; for he would secure his tenure by making over the land to some great lord whom it would be difiicult to oust and who would consent to hold it to the use of the disseisor. This too was met by an Act of 1377. Finally, i Ric. II. it was an indispensable weapon whether against the king c- 9- to avoid forfeiture for treason, or against the overlord who 68 ENGLISH CONSTITUTIONAL HISTORY would claim escheat on the failure of heirs, so long as the legal ownership remained in the treasonous or the heirless person. Remedies.. The only remedy was to assi?/ii/ak the positio)i of the beneficial I Ric. III. to that of the legal 07v net: This was partly done by two Acts, ^' ^' of which one (1483) made valid the dispositions of cestui que 4 Hen. VII. use without the consent of the feoffee to uses, while the other ^' ^^' (1488) gave to the lord the wardship of the heir of cestui que 27 Hen. use; but it was the great Statute of Uses of 1535 which ' definitely converted the beneficial into the legal owner, and made the former accountable to his lord for all feudal services and dues. This had the further effect of destroying the power ■ — which had become both possible and common with the growth of Uses — of disposing of interests in land by will. But the result of the Act was directly the reverse of its purpose. The interpreters of the Common law held that the Act had provided for only one transfer from the legal to the beneficial owner, so that no account could be taken of any further interest. 'An use,' said the judges without any apparent reason,. ' cannot be engendered of an use.' Thus, if land was left to A to the use of B to the use of C, the Statute was held to be satisfied in the securing of i?'s interest ; C's claims were left as before to the jurisdiction of the Chancellor, and the distinction was restored between the equitable and legal estate which it had been a main object of the Statute to extinguish. These second Uses became the Trusts of modern law. Again, the restriction placed by the practical extinction of Uses on the power of Wills, was so unpopular among the landowners that as early as 1540 its restoration within limits was found neces- 32 Hen. sary. The Statute of Wills allowed a tenant in fee simple to VIII. c. I. dispose by will of all lands held in socage, and of two-thirds of any lands held by military tenure. Abolition of Kut the military tenure was doomed. The services due feudal from it, long obsolete, were regarded as an unnecessary tenure. burden, though the system of uses for some time alleviated their pressure. Under Henry VIII not only were Uses abolished, but a special Court of Wards and Liveries was created for the express purpose of asserting more effectually the feudal rights of the Crown. The result was a strenuous endeavour to get rid of the feudal tenures. The first attempt THE Land and its inhabitants 6g under James I, known as the Great Contract, failed because the king refused to surrender a// his rights. But the Long Parhament abohshed Distraint of Knighthood;^ and in 1645 ^Gardiner, the Commons and Lords at Westminster voted the abolition Documents of the Court of Wards and Liveries, and of military tenures by i>^^"'^l1"^ the substitution of tenure in socage.- This was confirmed 2 y^,-^/ 207. by the Parliament of 1656, and finally by the Long Parliament of the Restoration in 1661. Henceforth under the Statute of '^ ^^''' ^^• c. 24. Wills It became possible to dispose by will of all lands held in fee simple, which could now be held only on the one tenure of socage. Two subjects remain for consideration — the Mortmain Laws Mortmain and the Modern Strict Settlement. Laws. Land granted to a religious house was held either in frank- almoin or, more commonly, in fee simple by military tenure. But in this case the fact that the holder was a corporation and therefore never died, caused loss to the lords of all those dues which came from the lucrative items of Relief, Wardship, Marriage, Forfeiture or Escheat. Such land was said to have fallen in mortua manu, ' since from the majority of legal claims it was practically void or dead.' Thus it was the interest of the superior lords to restrain such grants on the part of their pious or dying tenants.-'' In answer to the Petitions of the Barons "■' the Provisions of Westminster'* in 1259 iox-^S. C. 383. bade ecclesiastics to enter on the land of any one without the § ^°- leave of the superior lord ; but this clause was omitted in * Jl'id. 404- the sanctioning Statute of Marlborough in 1267. But the ^ '^' vague and ineffective forty-third Article of the Charter of 1217,^ which had been construed as prohibiting all grants oi^ Ibid. 347. land to religious houses, was defined and extended by the third great Act in Edward I's land legislation known as De Viris 7 Edw. I. Rcligiosis, which forbade such grants to all corporations, lay as 1279. well as ecclesiastical. But the class which was interested in the evasion of the Statute was too large and powerful to acquiesce in the prohibition. The terms of the Statute were held to apply only to acquisition of land by gift or sale, and not to land gained by process of law. Thus recourse was had to the medium of a Recovery by which the ecclesiastics collusively sued the occupying tenant, who thereupon made default, and the land was adjudged in fee simple to the designing monks. c. 37- 70 ENGLISH CONSTITUTIONAL HISTORY But the Crown and the overlords would not tamely submit to 13 Edw. I. SO large a loss of their rights. -The Statute of Westminster II ^- 32- placed in the hands of a jury the determination of the right of the claimants to the land, and, in case of its disallowance, gave the land in forfeiture to the overlord. The ecclesiastics returned to the charge armed with the method of Uses, until they were effectually and finally restrained by the Act of 1391. Hence- forth there were only two methods of getting over the restric- tion — by licence from the Crown or the mesne lords, if any, 7 & 8 until an Act of 1695-6 removed the necessity for the consent \VUK HI. ^f ji^g latter; or through exemptions made by statute in favour of particular corporations or classes of corporations, such as the Universities and Colleges of O.xford and Cambridge, Eton 1 Digby, and Winchester, or limited Companies.^ But Mortmain has 2^7- long ceased to be a danger to the Constitution and the effects of the more recent Acts (51 and 52 Vict c. 42, s. 2 as amended by 54 and 55 Vict c. 73, s. 5) must be sought in the domain of technical law. Strict Set- It is only possible to indicate the chief points connected tlements. ^^.jj^j^ j.j^g growth of the complicated and technical process known as a Strict or Family Settlement. We have noticed the desperate effort made by the smaller landowners after the passing of De Bonis to break through the entail which was then engrafted on the law, and how from the fifteenth century they were able to do so by the use of a Recovery, and from the sixteenth century by a Fine, until both methods were extin- guished in 1833. But although it was quite impossible to prevent a tenant in tail from exchanging his holding for an estate in fee simple, something could be done on the part of the great landowners to keep their estates from alienation ; and here they found the lawyers able and willing to help them. The perfection of the form of Strict Settlement is generally attributed to the legal ingenuity of Sir Orlando Bridgman, Lord Keeper in succession to Clarendon ; but for some time previously it had been in preparation. After the Statute De Donis the grant of an estate for life to A might be followed by the grant of an estate tail to his son B. B'?, son C would be the ' tenant in tail in remainder ' who on coming of age could, with the consent of B, but only on that condition, break the entail and obtain a fee simple of which he THE LAND AND ITS INHABITANTS Jl could dispose as he pleased. But in process of time there arose a gradually recognized distinction between a vested and a contingent remainder. By the former, 'an estate of future enjoyment ' was conferred in a pre-determined order on certain persons already in existence ; whereas the latter provided for the descent of the land to a life as yet unborn. In accord- ance with this distinction it was settled that the final tenancy in tail could be conferred on the unborn child of an as yet unmarried though living tenant for life, and in order to prevent the indefinite inalienability of the estate, about the middle of the eighteenth century it came to be ultimately recognized by the application of the ' rule against perpetuities,' that the furthest limit of time for which an estate can at any one moment be tied up and rendered inalienable, is the attain- ment of the legal majority by the first tenant in tail mentioned in the settlement, at which period the tenant in tail can exercise his discretion of keeping or breaking the entail.' But in order ' Pollock, that the estate may be handed down through generations, as -^^^'^ far as possible inviolate, it became customary for the son (the 122- 1 28. unborn tenant in tail) on his coming of age, in consideration perhaps of a substantial allowance from his father, to break the entail and, in conjunction with the father, who after 1833 was known as the Protector of the settlement, to make a re- settlement of the estate upon his as yet unborn son or sons in succession. Thus the son in his turn becomes a mere tenant for life of his estate, and no alienation of the property can be made until his own as yet unborn son comes of age. CHAPTER II THE EXECUTIVE Divisions of govern- ment. Chap. Chap. The Crotun and the Coiaicil. § 8. In the art of government, as in any other practical work, progress may be traced in an increasing subdivision of functions, and it is as a provision for better administration, and not as a security to civil Uberty, that in process of time the work of government becomes more speciaHzed. These functions fall roughly but naturally into three, (i) In a highly advanced state the duty of making the law belongs to the whole body politic, and in any case the law-maker, the holder of the legislative power, is the real sovereign of the country. (2) All modern constitutions recognize that the interpreters of the law, tho. Judicial bench, should be separate from those who make it ; otherwise there is no security against arbitrary stretches of authority under a legal guise. (3) Even more necessary is the division between the executive, or administrating body, and the judges ; otherwise the same persons would be the doers of possibly illegal acts and the judges of the legality of them when done. The student of constitutional history has to learn the late recognition of even these broad and obvious distinc- tions. For convenience sake, however, the question will be treated from the modern standpoint, and this threefold division will be taken for granted. But inasmuch as the most prominent power in an early stage of organization is the executive, which both issues isolated ordinances and then applies them, his- torical accuracy demands that it should be noticed first. The formation of a definite legislature which draws up scientific V. and permanent laws, is a much later process. With its growth the executive loses much of its early initiatory authority, and TlIK EXECUTIVE 73 tends more and more to become a mere agent of the sovereign power. Laws cannot be interpreted until they have been made; so that logical necessity, as well as historical accuracy, dictates the treatment of the judiciary last in order of the three. But Chap. vii. the executive does not surrender its exclusive power of initia- tion without a severe struggle ; and the longest and most interesting chapter in the history of the English Constitution tells of the rivalry between a small and highly centralized Chap. vi. executive on the one side, and on the other a large and invertebrate but representative legislature. The executive in England is formed of an hereditary monarch,A holding the crown under certain religious restrictions, and a \ council which, though always nominally composed of ministers f of the Crown, has actually undergone considerable change, j Each of these must be separately considered. ■^ § 9. The historical position of the Crovv^n in the English Constitution will be realized best from a description, first, of/ the iit/c by which at various periods it has been held, and ( next, of that theoretical basis of the kingly power known as J the ?-oy a/ prerogative. Before the migration of the English folk to Britain, the Title to the general system of government as described by Tacitus was Crown, that of a national assembly of all fully qualified freemen, for whose final decision the items of business had been prepared by a small committee composed of the elected magistrates.^ 1 Ger- A few of the tribes had adopted royalty ; but in such cases the "'ania, kings were elected from among the nobles and occupied an /^ yx^^^. honorary position as impersonating the unity of the tribe ;tion. though even at this early stage a strong ruler could make his position much more'real, especially by the advancement of his favourites to high ofifice.- The particular circumstances of the -ibid. c. 25. conquest of Britain, especially the continuous warfare, forced all the tribes under kingly rule. ' War begat the king ' ; the successful chief assured for himself a permanent position. But this position was not as yet fortified by theories of sovereignty. The English king was a powerful chief asserting ever-increasing claims over his subjects and adorned with the insignia of royalty — the throne, the crown, the sceptre, standard and lance. '^ But both in theory and in practice was the monarchy 2 s. C. H. elective, and although by gentile rule the choice of the ^^'itan §§ 59-62. 74 ENGLISH CONSTITUTIONAL HISTORY was restricted to the members of one family, the most com- petent individual of that family would be chosen ; while the elective theory was further kept alive by the occasional use of the power of deposition. Nor, despite the very changed position of the Norman conquerors, did the elective theory at once disappear. William, claiming to succeed Eadward the Confessor as his lawful heir, .submitted himself to the election of the Witan, and the continued existence of the theory was ensured alike by the personal character of kingship which made all the early rulers kings of the English people and not of the land ; by the ceremony of coronation, involving as it did a recommendation to and election by the people, and by the circumstances under which each of the three later Norman kings succeeded to the throne : for both William II and Henry I had to make good their title against their elder brother Robert, and Stephen by such means cut out the dynastically superior claim of Matilda. In proof of the elective title, each of the Norman kings on his accession issued a 1 S. C. charter of promised reforms in return for his election.^ 100,120. g^j- |-j-^jg theory of, election, modified as it was by the hereditary claims of one family, was gradually superseded by (2) Here- -the idea oi pure hereditary right. So long as it lay with the ditary Witan Or Great Council to make the actual choice, the cere- "^ ■ mony of election and the resulting coronation were essential to the exercise of royal authority, and between the death of the previous monarch and the election of his successor there was an actual interregnum during which it was no one's business to maintain peace and order in the country. But the feudal theories which were worked out after the Norman Conquest did much to mitigate the evils of this elective system. For I the election by the Witan was substituted the homage of the ' vassals ; while ' the feudal land law assimilated the descent of 2 Anson, the Crown to the descent of an estate in fee simple.'- Thus ii. 58. fQj. ^ personal basis was substituted a territorial basis, and the king and representative of the people became the king and owner of the land. Another influence was at work in the same direction. Hereditary right soon tended to include an inde- fcasil)lc claim. The lawful successor could in no case be deprived of his right, for such right was of divine origin. The old divinity of descent claimed by the heathen Saxons for THE EXECUTIVE 75 their kings, had now given way to divinity of office : for the Church desired to enforce on the holder of the Crown the sense of responsibility; while the lawyers of the twelfth century, incited by the increased influence of the Roman law, sought • ■ ^ S C H to strengthen the authority of the law by exalting that of the s icg ' theoretical lawgiver.^ It was in accordance with this hereditary view of kingship Its estab- that Richard I and John omitted the issue of coronation lishment. charters. John, moreover, was the first to describe himself ' on the Great Seal as Rex Angliae. Henry III, though a mere child ascending the throne at a critical moment, was accepted without demur ; - while Edward I was proclaimed in 2 s. c. H. his absence and reigned for nearly two years before his corona- § 170. tion. This was the first constitutional recognition of the \ altered character of kingship.^ After his reign the proofs are ^ //'//d. 529. is under this final settlement that the Crown is at present held. But it is important to notice with Hallam* that the great •» h-iI lam, work of the Revolution of 1688 was that it broke the line of"'- 92. succession. ' The changes which then took place were either declarations of principle or changes of practice, and of actual legal limitation there was but little. Parliament had settled the succession to the Crown before, and it settled the suc- cession again,' and yet it will be found that 'the conception of a royal prerogative superior to all the rules of law had survived the catastrophe of the Rebellion.' ■' We are thus led ^ Anson, naturally to our second illustration of the historical position "• ^4- of the Crown — the history of the development of the royal prerogative. ^ 10. It has been shown that the monarchy was in its origin The Royal the representative of the people. So long as this aspect was i_''eroga- predominant, there could be no question of special rights or powers on the part of the monarch. As the head of a feudal 78 ENGLISH CONSTITUTIONAL HISTORY society his position was limited and defined in theory by the j' action of a feudal council of his tenants-in-chief Thus it was I not until all trace of the old representative character of the Crown . had been wiped out by the feudal theory of the king's proprie- / tary right that any definition of the royal prerogative became Lpossible. The royal power now came to be regarded as inherent, and this view grew side by side with the hereditarj^, as opposed to the elective, right to the title. Already, since the days of Henry II, the clergy and the lawyers had been at work. The former made use of the Scriptures to enforce on the king the sense of responsibility ; and on the people the religious duty of obedience, of which they were the first to feel the embarrassing effects. Meanwhile the lawyers, with the aid of the revived Civil Law of Rome, built up the systems of allegiance, fealty and homage. Thus Glanvill applied to Henry II the maxim of Justinian that the pleasure of the king has the force of law ; ' S. C. 169. while the author of the Dialogus de Scaccario ^ asserts that the = .S". C. JI.J^ king's deeds are not to be judged by men.- This was nothing ^ '58- (^ else than the assertion of absolute power. No wonder, then, that when, with the growth of Parliament, national demands are formulated and rights made good, it seems as if 'royalty becomes in theory more absolute as in practice it is limited ^ Ibid. more and more by the national will.'^ The result was that the § 273- theory of the prerogative, as it emerged, expressed not only that the king might do anything except what he had especially ■ promised not to do, but even that he might repudiate any / obligation which he thought to stand in the way of or to tell I against his sovereign right. Thus the prerogative was a kind of inexhaustible reservoir on which the king could draw at need, and of which, at the best, portions alone could be cut off by separate and oft-repeated acts of the people. All power was inherent in the king ; everything emanated from him ; he was the supreme landowner, the source of justice ; in himself individually was summed up the State. The painfully-won rights of the people seemed scarcely to touch the exercise of the royal power ; for, beyond these definite claims made from time to time by Parliament, there extended the region of undefined prerogative. Its defini- ^ jj. ^^g jj^ accordance with this theory that the judges of the the"siuarts. Stuart kings defined the prerogative as twofold. It contained THE EXECUTIVE 79 the king's ordinary power, which he exercised in accordance with | the will of Parliament; and his extraordinary power, which was ; " for the good of the State and could not be diminished.' In this * Cf. Pro- view the ordinary power was that which the king had practi- '^'°' ^'^^' cally surrendered, and the exercise of which, so far as the king was concerned, was subject to custom and to statute. As far as it was regulated by statute, the king could not lawfully act without the concurrence of Parliament, and such powers really ceased to form part of the royal prerogative. Moreover, custom had rendered the consent of his Council necessary to the king's action in certain cases. This might or might not be a real limiting power : it was so under the early Lancastrians, while the Tudors and Stuarts exercised their prerogative through. the Council. Again, the Law Courts might have formed a limit to the royal authority ; but the use of royal writs, the royal power of pardon and the entire dependence of the judges on the Crown minimized the force of such a check.- There were, besides, '^ Anson, other attributes and rights of the Crown which it shared with "• ^9- no body in the kingdom. Such were those rights drawn from the position of the king as feudal lord, and carrying with them not only powers incidental to the ownership of an estate, but also the conception of treason and allegiance as matters personal to the sovereign. '■ Such also were certain attributes, •' 5. C. H. the result of legal theory, which for convenience sake estab- § 462. lished the important maxims that the king never dies, and that the king can do no wrong. ^ 4 Anson, With certain additions, then, the royal prerogative may be";"- 4- defined as the discretionary poiver of the Crojvn.^ So long as ^'^^i ^V ' this was exercised on the whole in the interests of the people, 'i5';/^/rtr;//_ complicated by political considerations. The simplest method § 35i- would have been to imitate the Convention Parliament of 1688 and, by an Address, to request the obvious person to assume 17S8-9. the functions of royalty. But this ' obvious person,' the Prince of Wales, was deeply committed to the cause of the parlia- ' mentary Opposition, and Pitt, the Prime Minister, knew that his appointment would be followed by the instalment of the 84 ENGLISH CONSTITUTIONAL HISTORY \ Opposition in office, with a majority purchased by all the means 'vof influence at the disposal of the Crown. Pitt, therefore, j determined to impose restrictions on the exercise of the pre- vrogative in the hands of the Prince, and an Act of Parliament /father than an Address became the necessary procedure. Poli- / tical animosity caused the two parliamentary parties to reverse I the principles which for a century they had respectively upheld. \ Fox, the leader of the Opposition, although acknowledging ] that it was the duty of Parliament to declare at what period ', the Regent should assume power, yet maintained that when /'Parliament had so decided, the Prince of Wales had as clear / .... j a right to the attributes of sovereignty as if the king were / already dead. Pitt, on the other hand, was driven to declare I that, except by decision of Parliament, the Prince had no more 1 Lecky, v. dght to the regency than any other subject of the Crown. ^ 103-111; • This argument, as Fox asserted, introduced the principle of V^^ election into the first branch of the legislature, which was as un- 429. ^ . , . Erskine constitutional as the introduction of heredity into the House of ^^y'' Commons. But a more practical difficulty still remained. Pro- Jlisi. ' cedure by statute necessitated the royal assent which, under the i. 175-183. circumstances, was impossible. The solution of this difficulty to which Pitt resorted has incurred the condemnation of constitutional lawyers. The two Houses were to authorize the Chancellor to put the Great Seal to letters patent appointing one commission for opening Parliament, and another commission which should give its assent to the Regency Bill. iJefore the bill passed the king recovered; but on his relapse in 1810 the same method was employed, and a bill containing restrictions on the Regent's power in the matter of the creation of peers and the grant of offices and pensions, received the royal assent by a commission appointed by Parliament. Many eminent lawyers united in condemnation of this ' phantom king,' whose will was a mere echo of that of ' the other two estates,' and thereby robbed of all meaning the exercise of the power which still lay in the royal prerogative. 'The precedent established,' 2 Lecky, says an historian,- ' was a revolutionary one,' and he adds his V. 124. belief that ' if England should ever again pass through a period of revolution, and if it should be thought desirable to throw over that revolution a colour of precedent and legality, this page of history will not be forgotten.' THE EXECUTIVE 85 § 12. The bond between sovereign and subject is to be Relations found in the Oath of Allegiance. Together with Fealty and ^Q^.^Te^g^ Homage, it dates from the time of a fully developed feudal and sovereignty. All three words express various sides of the subject. relations between a feudal monarch and his people.^ Thus ^ S. C. H. Fealty (foi) was the promise of the military follower to be § 463- personally faithful : Homage was definitely connected with the bestowal of land ; while Allegiance was due from every member Allegiance, of the community, whether he were a landholder or not.- But ^ Anson, n. with the decay of the feudal status the two former sank into mere ceremonies ; and although the establishment of an efficient system of police had rendered superfluous the necessary exaction of an oath, allegiance is still due not only from citizens, in which case it is called natural, but also from resident aliens under the name of local allegiance. Originally the territorial nature of feudal sovereignty not only extended the duty of allegiance over all who were born in the country irrespective of their parentage, but even made such allegiance perpetual. The Naturalization Act of 1870, however, enables 33 & 34 a British born subject to become, by renunciation of allegiance, ^^j' ^' a naturalized subject of a foreign power. / The betrayal of allegiance constituted Treason. The LAW|The Law of OF Treason formed perhaps the strongest bulwark of the ''^''^'^^°"- royal power. It grew with the growth of kingship. Thus in'^ the earlier Anglo-Saxon laws the difference between the life of the king and that of an ordinary freeman is one merely of degree : both were estimated in money, though of course at widely different sums. As the king's position increased, his life became of increasing value, until it reached a point at which harm done to his person could not be atoned for save with the life of the wrong-doer. It is this difference in kind between injury to ftir king nnrt i itj)ny to an individual whic h cojis t i ti i tes the iaw^ of treason .- The first hint of the change is found in Alfred's law that any man plotting against the king's life should be 'liable in his life and in all that he has.'^ But ^ s. C. 62. for the present the king shared this position, as he shared ^- 4- the benefit of Eadmund's oath of fealty,* with other lords. ■1/3?^. 67. William the Conqueror's Oath of Allegiance at Salisbury, 1086. together with the whole policy which he inaugurated, must have made it impossible for the lords to compete any longer with the 86 ENGLISH CONSTITUTIONAL HISTORY Crown. The great legal writers of Angevin times have nothing Its early to say in respect of the lord. They draw their definitions history. largely, though not exclusively, from the Roman law of 1 S. C. H. ' Majestas.' ' But the application of the law by the judges was §463^ very vague and apparently arbitrary. The only discoverable ^j ij ■ eo2. principle seems to have been the desire to extend the interpre- tation of a breach of allegiance as far as possible, so that the condemned person should lose his ' benefit of clergy ' or right to trial by an^ ecclesiastical court, and the king should obtain the forfeiture of the criminars land and goods, which, in the case of a conviction for felony, would have escheated to the superior lord. The commonest form of accusation — laid against the Despencers in 1321 and again in 1326, and against Mortimer in 133 1 — was that of 'accroaching royal power.' At last, in 1348, on the adjudication as treason of a mere case of highway robbery, the Commons asked for a definition of this offence of accroachment. Although the king returned, as his immediate answer, that cases should be decided by the judges as they arose, four years later came the first attempt to embody 25Edw.III. the principle in statute law. In 135 1 the Statute of Treasons, ^^- 5- following closely on the lines laid down by the great jurist 2 Lib. iii. Bracton,- defined and limited treason to seven heads. These 1 18 (5 were {a) compassing or imagining the death of the king, the Edward queen or their eldest son and heir ; {b) violating the king's III.'s Sia- companion, eldest unmarried daughter or eldest son's wife ; -^ ^ ° {c) levying war against the king in his realm ; {d) adhering to and aiding the king's enemies in his realm and elsewhere; {e) counterfeiting the king's Great or Privy Seal ; (/) issuing false money ; and {g) slaying the Chancellor, Treasurer or Justices whilst discharging their offices. To these was added a proviso to the effect that Parliament might adjudge as treason, although not specified in the Act, any political misdeed of which a future offender might be convicted. The terms of this '^ Stephen, Act are most general. ' It enumerates,' it has been said,* 'the Htst. only crimes likely to be committed against a popular king who ii zvi. " ' ^^^^ ^'^ undisputed title, and as to the limits of whose legal Its great power there is no serious dispute.' In short, ' it protects defect. nothing but the personal security of the king.' It seems * But see probable that the mild and incomplete wording of the Act was F. and M. ^j^^. ^q j-j^g power and popularity of the reigning king.-* On THE EXECUTIVE 87 some such supposition alone can we account for all omission from the Act of political conspiracy for the king^s deposition., as apart frotn plots for his assassination, and until such conspiracy has become open war. This serious defect was remedied in three different ways. Remedies. In the first place, the proviso at the end of the Statute (0 Action practically allowed Parliamettt to create an ex post facto treason, jiament Legal writers have disputed whether this proviso referred to parliamentary action in a judicial or a legislative capacity. In the former case it would concern the House of' Lords alone ; and it was m such a capacity that in 1387-8, at the instiga- tion of the Lords Appellant, Parliament proceeded against Richard II's favourites. But for some reason this method of operation seems to have ceased, and Parliament proceeded by a bill of attainder which involved no definition, rather than by impeachment on formulated charges. A second method of (2)Tem- overcoming the defects of Edward Ill's Act was by additional ^^^^^^^ legislation. This, however, was only intended to be temporary, tion. The only permanent addition made for two centuries to the statute law on the subject of treason was the Act of n Hen. Henry VII of obedience to the king de facto as opposed to ^" ^' any king de jure^ which was intended to quiet tender con- 1 Hallani sciences by justifying to future generations, and possibly under i. 9. altered circumstances, their present obedience. Of temporary Acts there were many from Richard II onwards. Thus an Act of 1397 was repealed in 1401, and another of 1414 in 1442. But it is to the Tudor times that we must look for the most numerous instances of this method of fortifying the Crown. During the seventy years of struggle for sovereignty in England 1533-1603. between the Crown and the Pope, this was one of the weapons to which the Crown most naturally resorted in order to ensure from its subjects the recognition of the position which, for the first Uime, it found necessary so carefully to define. Thus Henry VIII forced through Parliament no less than nine Acts creating new treasons. Of these, four upheld the king against the papal power, the chief being the Act of Supremacy which 26 Hen. made it treason to deny the king's title as head of the Church. ^^^^- c- i- The severity of their provisions has been overrated, for many of them were already included in Edward Ill's law, while others can be paralleled from the legislation of William III 88 enc;lisii constitutional history ^ Stephen, Hist. Crim. Law, ii. 258. I & 2 Phil. and Mary, c. 10. " I Eliz. cap. 5. Prothero, 3 13 Eliz. caps. I & 2. Prothero, 57-63- ^ 23 Eliz. c. i. Prothero, 74-76. Ibid. 257. 5 27 Eliz. C. 2. Prothero, 83-86. 6 13 Car. II. S. I. C. I. ' I Anne, c. 16. * 6 Anne, c. 66. (3) Inter- pretation of Judges. and Anne, to which no such character has been appUed. The remaining five Acts, which 'are beyond all question of terrible severity,' '' dealt with the question of the succession, and made it treason to alter the settlement or to cast any doubt on the validity or the nullity respectively of the king's various marriages. Under Edward VI, while all the specially created treasons of his father were abolished, three others were placed on the statute book, namely, a denial of the king's supremacy (1547); riots of a certain specified kind (1549): and the denunciation , of the king as an heretic or usurper (1551). These were all in their turn repealed by Mary, but the Spanish marriage was defended by making it treason to deny Philip's title of king consort. The same Act made it treason to pray for the queen's death. One of the first measures of Elizabeth's reign was to re-enact this statute with an application to the new sovereign.- Circumstances demanded further definitions. In 1571 the Pope's bull of deposition was met by Acts making it treason to deny the power of the queen and Parliament to limit the succession, or to call the queen heretic, schismatic or usurper, or to bring papal bulls into England.^ A statute of 1 58 1 was aimed against the Pope's power of absolving subjects from their allegiance,'* and this was re-enacted by James I in 1606; while in 1585 another Act was called forth by the machinations of the Jesuits.^ Similar circumstances in later reigns produced resort to similar expedients. In 1661 it was made treason to imagine any bodily injury to the king ; ^ in 1702, to hinder or attempt to hinder the next in succession to the throne according to the Act of Settlement;" and in 1707, to assert by writing or printing the right to the crown of any other person than the next in succession according to the Act of Settlement, or to deny the power of the sovereign and Parliament to limit the succession. '^ Meanwhile, the third, and by far the most important, method of filling the gaps left by the Treason Statute had become firmly established. The place which, some legal writers think, was meant to be filled by Parliament in its judicial capacity, was taken by the bench of judges. A consensus o( Judicial decisions established the principle that the words of Edward Ill's Act were intended to bear a much wider than their literal inter- pretation. In accordance with this principle, a cojispiracy to THE EXECUTIVE 89 ki'v war was construed as an overt act of imagining the king's death. This interpretation seems to have been finally established at the end of Elizabeth's reign when, in the case of the Earl of Essex, the judges advised the Lords that 1600. ' in every rebellion the law intendeth as a consequent the compassing the death and deprivation of the king.' Possibly the late repeal of the severe treason laws of Henry VIITs reign exposed the defects of Edward Ill's law and so en- couraged lawyers to make good the deficiencies 'by strained artificial constructions.' The same principle was applied to expressions of opinion. Thus spoken ivords could not be construed as an overt act, but they were held to expound an overt act. On the other hand, words committed to ivriting were held to be overt acts, while under the Stuarts, in the cases of Feacham (1615)^ and Algernon Sidney (1683),- the 1 Hallam, judges actually interpreted unpublished ivritings in the same i- 343- way. In short, the imagining of the king's death has been " ^^'^'^- ^^^ held to include an intention of 'anything whatever which under any circumstances may possibly have a tendency, however remote, to expose the king to personal danger or to the forcible deprivation of any part of the authority incidental to his office.' ^ The levyitig of war against the king in his ^ Stephen, realm was construed in a similar fashion. According to the t;'!^" ^ wordmg of the clajuse, the extent of the violence employed did \\, 268. not signify. Provided it was aimed against the king, it was treason. The original object was perhaps to distinguish between insurrections and private wars ; but when these latter ceased, all disturbances must of necessity be against the king's govern- ment. From this sweeping interpretation great lawyers, like Chief Justices Coke and Hale, tried to escape by making a distinction between mere riots and actual rebellion, founded on the object of the disturbance. Thus a special and local tumult, aiming, for example, at the throwing down of enclosures, would be included under the former head ; while a general political movement to compel the action of the government in some particular direction, would fall under the more serious charge of treason. But the judges as a body were not so lenient, and as late as 1668, in the case of Messenger, they pronounced a riot of apprentices for the purpose of pulHng down houses of bad repute, to be treason; and in 17 10, in 90 ENGLISH CONSTITUTIONAL HISTORY ^ Ilallam, the case of Damtnarec} they similarly treated a charge of iii. 158, destroying dissenting meeting houses in the riots connected with the trial of Dr Sachevcrell. In 17 15, however, this power I Geo. I.C.5. of judicial interpretation was considerably checked, and the Riot Act removed local riots from the action of the treason law, by making it a felony for rioters to refuse to disperse at the command of a magistrate. (4) Statute These far-fetched interpretations, which have been described Law. ( i^y ^^,^y q|- Q(jjuri^ ' a^s thg Law of Constructive Treason, were brought to a test towards the end of the eighteenth century in the cases oi Lord George Gordon (1780), of Hardy and of - Erskine Home Tooke (1794).- In all these instances the reading of May, 11. j.j^g j^^^, — which was accepted by the council for the prisoners and was expounded by the judge to the jury — was this con- structive law ; but there seems little doubt that the acquittal of the prisoners in all these cases did ' in a popular sense ' discredit this extreme latitude of interpretation. At any rate, in 1795 came the first modern supplementary law of treason, and the Act 36 Geo. Ill c. 7, which was made perpetual in 57 Geo.III. 1817, both embodied the constructive interpretations put by ^" lawyers on the ' compassing of the king's death,' and enumerated all the steps towards the death or deposition of the monarch or the coercion of him and of Parliament. This was followed by II & 12 the Treason Felony Act of 1848, which converted into felonies Vict. c. 12. 2i\\ those acts which had now been brought under the head of ' compassing the king's death,' except such as were aimed at the person of the sovereign. Thus the terrible charge of treason, wi^h all its attendant severities, has been defined and narrowed. Statute law has supplanted the Common law. As in so many other ways, instead of the State being identified with the king, the king is now merged in the State. Procedure '^ be change in the procedure in trials for treason had been in trials of more rapid than the change in the law. Originally the trials treason. ^.^Q^e. grossly Unfair. The greatest latitude of procedure was allowed ; the prisoner himself was cross-examined, and all kinds of evidence, written as well as oral, were accepted 1552. against him. A law of Edward VI attempted some remedy 3 Haiiam ^y making two witnesses necessary to prove an act of treason.'' i. 40. But this was of slight effect. Under the Tudors the two witnesses bore testimony to different facts, and even, as THE EXECUTIVE 9 1 in the trial of Babington on the plea that he was indicted 1586. under the Act of Edward III, the necessity of two witnesses was waived. But in 1696 an Act required that both witnesses 7 ^^ Will, should testify to the same overt act or to two overt acts ' ^' ^' under the same head of treason. It moreover provided that the prisoner should receive a copy of the indictment and a panel of the jury some days before the trial, and gave him the assistance of counsel and the power to compel the atten- dance of witnesses, all of which had hitherto been denied.^ | Hallam, Finally, while with the definition of treason the death penalty ^"^.]^^^ had been correspondingly reduced, the terrible surroundings of the penalty itself were removed. Originally the condemned man was liable to be hanged, drawn and quartered, and his lands and goods were forfeit. But the bodily liabilities were mitigated by two Acts of George III, which permitted of beheadal, and in 1870 forfeitures for treason were abolished and the punishment itself was reduced to hanging. § 13. The Crown was assisted in the work of administration The Curia by a Council. In early English times no difference is to be ^^g^^- found between the administrative and the legislative body in the kingdom. Both powers were centred in the Witan. But of central adm.inistration there was little. The Ealdormen ruled their provinces and the sheriffs their shires ; but it was just in the absence of connection between central and local governments that the fatal weakness of the early English government lay. An attempt has been made to discover the germs of an administrative body in England before the Conquest,'- but, - Green, whatever its value, it is to the initiative of the Normans that Conquest ,. . . . of hns;- we must attribute the first definite and successful discrmimation jand,' between the different departments and functions of government. 542-548- The chief result of the Norman Conquest was the establish- ment of a strong kingship in England. It was round and out Early Nor- of this personal authority of the king that the whole adminis- "''^" central r 1 T- 1- 1 /-. ■ • 1-1 organiza- trative arrangements of the English Constitution may be said tion. to have developed. William seems to have had a Curia or Concilium, terms which for a century at least were apparently interchangeable. It is scarcely likely to have been a definitely organized body ; but a nucleus would be formed by the holders of the chief administrative offices, who would in the 92 ENGLISH CONSTITUTIONAL HISTORY first instance be supplied from the members of the royal household, and would each be in charge of a separate depart- ment which he would administer through a special staff of servants. This seems to have been, as nearly as we can discover, the form of government under William I and his immediate successor. But such a system depended too entirely on the personal influence of the king. In the absence of trained officials and recognized methods of admin- istration these offices were placed in the hands of the nobles and clergy. But many of the nobles were also entrusted with the chief posts of local government — the sheriffdoms, which in some few cases they contrived to make hereditary. The singularly united action of WiUiam and Archbishop Lanfranc alone pre- vented the inevitable oppression of the people by the royal servants, or rather postponed it until the next reign. The earliest organization of some governmental system has some- times been attributed to that powerful favourite of William II who, as the chronicler reports, 'drove and commanded all ^ S. C. H. Ijis gemots all over England,'^ but a recent writer will not ^ ^"°" allow that any good thing could come out of the evil genius of - Round, Ranulf Flambard.- It may, however, be allowable to conjec- Feiidal ^^^g ^^^ j^g showed how much could be raised from the people 226- '229.' by the strenuous and logical application of the system of land tenure which William I had worked out. For it was possibly the success of Flambard's methods which incited Henry I to break the promise made in his coronation charter that he ^ S. C. loi. would return to old custom in the matter of amercements.^ § ^- But had Henry stopped here, there would have been nothing new to record. To him or to his minister. Bishop Roger of Salisbury, must belong the credit of a statesmanship which perceived that regular exactions, however heavy, are borne more cheerfully than those which are spasmodic and irregular. Already there must have been some kind of financial organization for the receipt of the payments made by the sheriffs on account of the ferms of the shire and the danegeld : but of this organization we have no evidence. 1107-1137. Now, however, during the Justiciarship of Bishop Roger, there comes into existence a permanent body, to which perhaps gradually the name Scaccarium or Exchequer became technically attached, and which, probably for the first time, THE EXECUTIVE 93 brought together into one administrative body all the official heads of departments, to whom for this special purpose were added a certain number of trained financiers. Two circumstances may be said to have aided its formation. In the first place, Henry began to train a race of official nobility, the Clintons and Bassets, to take the place of the too powerful feudal nobility on whom the kings had hitherto been obliged to rely : secondly, the great official posts seem to have begun to fall apart into two classes, the more ceremonial becoming hereditary among the feudal nobles, whilst those of a more purely administrative character remained to be filled, at the disposal of the king, by clerks or laymen of his new nobility. But we must be careful not to overestimate the existing amount of organization. The development of a formulated system of government is in any case a slow process, and in mediaeval England it was so slow that even at the beginning of Henry H's reign his ministers were little more than officers of his household.^ Thus it is not surprising that 'even under' Siubbs, Henry I the word scaccarium is by no. means of common -^'^'"^" ''^ occurrence.' - The full body met only twice a year to receive Abbas, ii. the sheriffs' accounts, and the ordinary financial business p- xxi. would no doubt be done, as perhaps it had hitherto been "^ S. C. H. done, by the Treasurer and his staff. Still, it was a perma- ^ ^- • nent body consisting of definite persons, and organized for a definite piece of work ; and in the intervals of its sessions its members, with the title ' barones scaccarii,' were sent round the country, often in conjunction with the sheriffs, primarily for financial business, but incidentally also for judicial business. Thus they seem to have been called equally barones scaccarii and justiciarii; but it has been pointed out that, although they probably were experienced financiers and administrators, they were not necessarily trained lawyers.'' In fact as yet Xh&io.^ P. and M. were no trained lawyers ; for there was no law, except the '• ^7- Roman and Canon law, in which they could be trained. It was the organization of Henry H's reign which first gave the means for the reduction and systematization of local customs into one uniform Common law. For, although Henry II raised the Exchequer from the ruin into which all government had fallen in Stephen's time, and made great efforts to secure for it the service of specialists, even foreigners, it was to tlie 94 ENGLISH CONSTITUTIONAL HISTORY judicial organization of the country tliat lie turned his particular attention. The greatest obstacles to good government were the power which had been allowed to fall into the hands of the sheriffs, and the class privileges claimed by the barons and the clergy. Direct legislation might do something, but administra- tive organization would do more ; and, great as was the im- portance of the Assizes of Clarendon and Northampton, it was the regulation of the visits of the itinerant justices, the estab- lishment of a permanent judicial body and the evolution of the whole system of writs which brought about the supremacy of the Common law of the land over the feudal law of the manorial courts or the ecclesiastical law of the Catholic ' Church. The history of each of these will be told in another place. Here it is important to notice that for some time to come all the committees gradually formed to administer separate branches of government, were in theory mere delega- tions from the central and quite indefinite body of the Curia Regis. Thus the Exchequer was the Curia Re^is ad Scacca- rium; the judicial court of five judges formed in 1178 to remain with the king and hear the plaints of the people, was the Curia Regis de Banco; even the itinerant justices, though consisting only of a few professional judges mingled with a number of local delegates, were said to hold a Curia Regis '^ P. and M. as they went round the country.^ In course of time these 1. 135, ibo. delegated bodies obtained a form of their own ; and, in any case, whatever was the authority which had been delegated to them, a reserve of power was always deemed to lie in the king and the whole Curia of which they were supposed to form a part. Thus in 11 78 it was expressly said that the questions which could not be settled by the five judges who should remain at the Curia Regis, were to be referred for hearing and 2 5. C. 131. settling to the king and his sapientes.- By this vague method i 207 " ^'^^ chronicler intended, no doubt, to describe the body that would perhaps a century later be known as the King in Council — the mainspring of the administration of the country. To this strictly executive Council under the Normans and early Angevins, by way of distinction, has sometimes been applied 'Pike, the term Aula Regis. But it has recently been pointed out'' 27, note. that the Aula dealt merely with affairs of the royal household, and it may well be questioned whether, until the end of the THE EXECUTIVE 95 thirteenth century, there was anything to distinguish. For, the general conduct of the administration would naturally be the last point in which the king would allow himself to be ' fettered by a routine which would stiffen into law.' ^ Thus it seems ^ Maitland, probable that throughout the reign of Henry II the government ff^^.^^^^^"^ of the country continued to be administered in departments introd. xvi. whose only point of contact was the person and will of the king. § 14. It is to the minority of Henry III that Dr Stubbs has taught us to look for the first rudiments of a central administrative council — that is, to a time when there existed a Council of Regency which owed its appointment and sum- mons, not to the personal will of the king, but to the nomi- nation of the Commune Concilium.- But there is reason to 2 5. c. H. think that the Council of Regency was a mere temporary §§ ^ 7 1.230. arrangement, and that we have no warrant for believing that until well into the reign of Edward I, there was any organized Council except the Commune Concilium. This had been recognized for grants of taxation by Magna Carta.^ On all ^ s. C. 299. other matters — legislation, the administration of equity, general § '4- political discussion — the king took counsel with such persons as he chose to summon, and these for the time being formed his council. Thus the Council even under Edward I can \ only be described as perhaps mainly a body of officers, that is, ' of men who in one capacity or another are doing the king's • work, and receiving the king's pay.'* The only permanent ■» Maitland, organization in close contact with the king was the Chancery M'^mo- — the office of the Chancellor, whom Dr Stubbs characterizes '/j'^^^Z as the king's secretary of state for all departments.^ He metito. would be surrounded by a number of clerks who have, not 5 ^ q ^ inappropriately, been described as under-secretaries of state, § 121. and many of whom were ecclesiastics holding high preferment and trained students of Roman and Canon Law. It was as yet a long time before the Chancery was to become a judicial tribunal. It was at present a great secretarial bureau, a kind of permanent civil service. Nearly everything emanating from the Crown ultimately took the form of a document drawn up in Chancery and sealed with the Great Seal. Hence the quantity of rolls of all kinds — close, patent, fine, charter and others — which form some of the most valuable material for 96 ENGLISH CONSTITUTIONAL HISTORY H. ^ S. C §231. Maitland Memo- randa de Parlia- vieiito. 2 Fleta, 66. " Pike, 54. tracing the early development of the administrative arrange- ments of the country. Under Henry II it was established that no action could be begun in the king's courts without an originating writ issued from Chancery, which became the warrant of the royal judges for entertaining the action. Many of these writs were issued in answer to petitions addressed to the Crown, and as the number of these petitions increased, it was pftrhaps for the reception and answer of them that a central administrative council first began to be formed. For, many of these petitions could only be answered when the king was surrounded by his councillors or, in other words, when he was holding a 'parliamentum ' or colloquy, and arrangements were made in 12S0 and again in 1293 for the sorting of the numerous written requests which were now preferred to the Crown on all kinds of matters, and for the reference of the more important of them to the king in his Council.^ But not even yet can the Council as such be said to have formed a separate, well-defined body ; for, the answers of the king in his Council are enrolled sometimes on the rolls of the more strictly professional court held coram irge, which was coming to be known as the King's Bench, sometimes on the Chancery rolls, and sometimes on the newly formed Parliament rolls, which also contained the records of a body described by a contem- porary lawyer as ' the king in his Council in his Parliament,' — apparently the judicial side of the Commune Concilium. - It is to the last half of the fourteenth century that we must look for the clear setting apart of the Council into a body which was to exercise special functions of its own. About the middle of the century Chancery was separated ofif into a court for the hearing of certain classes of cases by the direction to suitors to appear ' before our Council in our Chancery,' and ' to do and accept as our court shall adjudge.' ■' Far more important was the separation of Council from Parliament. One of the most useful powers exercised by the king in his Council in his Parliament was that of interposing at intermediate stages in any suit for the purpose of preventing delays in the administration of justice. But Parliament only sat at intervals, and it was apparently with the intention of remedying the consequent difficulty found by well-intentioned suitors in getting judgement, that iu__i34i TIIK EXECUTIVE 97 an Act directed the election in Parliament of five lords who, U l-^lw. Ill in concert with the Chancellor, Treasurer, Judges, and other ^' ^' ^' ^' members of the King's Council, should be empowered in answer to petitions from suitors to direct the Justices. This body thus represented the King in his Council in his Parlia- ment, and could act at all times irrespective of parliamentary sessions. In its definite mention of persons the Act probably gave to the Council a consistency which hitherto it had lacked. At any rate it is to the early years of the succeeding reign that we can definitely trace the separation of the Council and Parliament. In 1383 the Rolls of Parliament make a clear distinction in the direction that ' as to petitions and bills, the king wills that those which cannot be expedited without Parliament be expedited in Parliament, and those which can be expedited by the King's Council be laid before the Council.'^ Three years later {1386) begin the separate Pro- ^ Pike, 2S0, ceedings and Ordinances of the "Privy Council — Concilium quoting secretum aut privatum — as it now came to be called.-^' To jj; jg^ complete the separation, the Lords of Parliament, as they ^ See JN'i- called themselves, refuse to allow the Judges to occupy the *^|^^' , position of equality with themselves, which those officials i,io-s and had occupied in the old and now defunct assembly of the Ordi- ' King in his Council in his Parliament,' and while admitting "f"'^"^.''-^ ° .' . o the Privy them to the sessions of Parliament, msist that they come Council, there merely to give legal opinions when asked, and not in the capacity of members of the Lords' House in Parliament. It was in pursuance of this view that in 1387 they referred to the Judges the legality of the appeals of the Lords Appel- lant against Richard IPs favourites and ministers, and then rejected the decision to which the Judges came.'' The reason 3 YiVq 201 for this ultimate separation may be found in the growing power of the Commons. By the end of Edward Ill's reign Th'e form of the House of Commons may be regarded as practically established, and extensive claims to power had been advanced by its members. As a counterpoise, the king on his ' side felt the need of a more distinctive body of advisers through whom his prerogative should be exercised ; while the Lords must have seen that their hitherto indefinite organiza- tion would not long protect the privileges of their order against •*' the formulated claims of the king or the Commons, H It 98 ENGLISH CONSTITUTIONAL HISTORY But the mere organization of this body of royal advisers had at once set it in antagonism to the national assembly. Already under Henry III the king strove to make the Council into a mere instrument of his will by filling it with his foreign favourites and dependants ; and the representatives of the Attempts barons had responded by attempts to convert it into a mere to control committee of the Commune Concilium, by securing for that body a voice in the nomination of its members. When the Commune Concilium gave way to Parliament, complaints against the action of the Council were redoubled. The first attempts to check it were on the lines of the baronial policy . , under Henry IH ; for, the appointment of the Lords Ordainers in 131 1 aimed at taking the nominatio7i of members of the Concilium out of the hands of the Crown. A newer means towards the same end was a les;islative curtailmeftt of the Cou/iciTs authority. Among several statutes passed under Edward HI with this object, may be noticed especially one 25Edw.III. of 1552, which, aiming at the power of arbitrary imprisonment St. 5, c. 4. exercised by the Council, declared that ' from hence none shall be taken by petition or suggestion made to our lord the king or to his Council, unless it be by indictment or presentment of his good and lawful people of the same neighbourhood,' etc. Its position By the end, then, of the reign of Richard H the Council as an instru- had become an organised assembly of royal officials, existing th^"rinff • ^"^ ^^^ pleasure of the king and ipso facto dissolved at his death. Like the old and indefinite Curia Regis, it was at once the body of executive ministers and also the supreme court in judicial matters, uniting in itself the now inconsistent functions of the government which suppresses a riot and the court which tries the rioters. Indeed, its legal side was so prominent that out of term time it took cognizance only of such things as were absolutely necessary to be done. ! But the Council was not merely the instrument of the as a check royal prerogative. Under favourable conditions it was a check upon the upon the action of the king, ' a curb placed by the aristocracy J !".^' on the arbitrary exercise of his will.'^ For it will readily be Privy " tinderstood that certain hereditary officials, such as the Mar- Council, shal and Chamberlain, would necessarily form a part of every ^9* Council; while, although the king was free to exercise a choice THE EXECUTIVE 99 among the whole Episcopal body, yet an equally necessary element would be a large number of bishops whose main claim to respect was independent of the Crown. But again, although under Richard II and Henry IV the king's power was sufficient to ensure an annual re-appointment, and to include among the members no less than seven outside the ranks of the nobility ; under Henry VI and onwards, appointments seem to have been made for the king's life, and the number of commoners in the Council tended to decrease.^ Thus the ^ Plum- Council imposed stringent regulations on the royal action, J"^"^ ^ °^' partly no doubt to protect the rights of the Crown, but chiefly 294, 298, perhaps to ensure that its members shall be consulted. As a result, no grants or expressions of the royal will were con- sidered valid until there had been affixed to them the royal, seal, whether it were the Great Seal of the Chancellor or the Privy Seal in the hands of a lesser official. § 15. During the early years of the Lancastrians the mutual The Privy antagonism of Council and Parliament was temporarily dis- *-°""<^"- pelled. From 1400 to 1437 Council occupied that position Under the of a committee wielding power delegated to it by Parliament, Lancas- to which the larger body had more than once striven to reduce it.- By nominating the members of the Council in "- Plum- Parliament, Henry IV seems to have satisfied the extreme 'i"^''''* ^'"'" . . . tescue, 297. popular demand for election of ministers. But after 1437 s C H. Henry VI attained his majority, and under the influence § 367. of his wife, Margaret of Anjou, he nominated men who were Its power not acceptable to the nation. The succeeding period was ""<^er con- that of the Council's highest power ; for it was not, as it came to be under the Tudors, overshadowed by the Crown ; while the regulations which it had enforced as to royal grants Under the and expressions of the royal will, placed at its disposal the ^ °'''^'^'^- unchecked exercise of the prerogatives of the Crown. It was- perhaps owing to this resumption of its power by the Council, that the already growing distinction was emphasized between the Privy and the Ordinary Council. This seems to have become clear during the minority of Henry VI, when it Revival of was again performing the additional functions of a Council of jis author- Regency. Thus (i) as the administrative body, the Council "y* would include all the great officials of state who were paid and whose regular attendance was demanded ; while {2) as the lOO ENGLISH CONSTITUTIONAL HISTORY 1 I'lum- mer's For- tesctie, 296. Under the Tudors. "^ Dicey, Privy Coimcil, 85. Extension of its aulhoriU'. I'rothero, Ordinary Council, it would include judges and other Coun- cillors who would be summoned occasionally and for a special puri)ose. It is worth while to notice in passing that it was this full Ordinary Council which was really the Star Chamber, and which exercised the judicial side of the Council's authority. The Council had always done its work by committees/ but the Privy Council may be regarded as the first permanent committee of the body. This system was much further developed under the Tudor sovereigns, and was rendered necessary by the increased activity of their government. With the accession of the Tudors the Council entered on a new phase of existence. The period between 1485 and 1640 has been described as the age of government by Councils. After the fall of the Lancastrians the position of the Council underwent a great change ; for, owing to the destruction of the power of the nobility in the Wars of the Roses, it ' ceased to be a check on the royal will, and sunk into a body of officials.'- But as its independence lessened its powers increased. The political authority which it exercised in the fifteenth century remained untouched ; while its legal side was greatly enhanced, and its legislative activity almost superseded that of Parliament itself. Thus (i) every opportunity was seized to subject outlying parts of the kingdom to the CouticiPs direct control as Ireland by Poynings' Act of 1494, and Jersey and Guernsey during the same reign of Henry VII. It was with the same object that special Councils were erected for the government of different parts of England itself. Such w'ere the Council of the North (1539), the Couticil of Wales and the Marches (1542), the Council of the West (1540), and the Court of the Castle Chamber in Ireland which was set up during the reign of Elizabeth.-' Of similar effect, though older in origin, w-ere the Council of Calais, the Stannary Court and the govern- ments of the Palatinates. The extent of this special juris- diction may be gathered from the calculation that one-third of England was thus withdrawn from the protection of the Common Law. Again (2) there was a constant attempt on the ])art of the Tudors to extend the legislative poivers of the Council through the use of Proclamations. These were temporary enactments like the earlier Ordinances, issued by the king with the advice of his Council, They were defined THE EXECUTIVE lOI by the lawyers as intended to explain or call attention to ambiguous or obsolete statutes ; but the sovereigns did every- thing in their power to endow them with the full force of « parliamentary Acts. But (3) the great aim of the royal policy was to place ihe laiv courts generally under the influence of the Council. This was attempted in two ways : (a) new Courts were erected composed chiefly of Councillors and acting under the supervision of the Council. Such were the Courts of High Commission., which will be fully dealt with elsewhere;^ o{ Requests, formed under Henry VIII as a minor ' pp- 586-8. Court of Equity to hear ' poor men's complaints;' of Augmenta- tions, for dealing with the confiscated monastic property ; of Firstfi-uits and Tenths, to administer the Annates and Tenths which were transferred from the Pope to the King ; and of Wards, set up by Henry VIII for the better exaction of the feudal dues. Most important of all was the direct extension of the its judicial judicial authority of the Council, which took place through the activity. (/') growth of the Court of Star Chamber. It has been shown that when, under Henry VI, there appeared a distinction between the Privy or Inner and the Ordinary Council, the judicial functions of the Council were exercised by the larger body. These judicial functions comprised an appellate juris- dic tion in civil cases, to the exercise of which no objection was ever made. Rut they comprised also the jurisdiction of a criminal court of first instance, which, necessary though' it often was, formed a subject of constant complaint in Parliament. But during the parliamentary period of Lancastrian rule. Parliament occasionally conferred on the Council by statute criminal powers at first hand. It was, then, going very little beyond what the Lancastrian Parliaments had already done when an Act w^as passed in 1487, constituting a new Court composed of seven 3 Hen. VII. persons — The (Chancellor, Treasurer, Keeper of the Privy Seal, c. i. a Bishop, a temporal Lord and the two Chief Justices — which should take cognizance of ' unlawful maintenance, giving of licences, signs and tokens, great riots, unlawful assemblies,' and all offences against peace and order which were too serious to be dealt with by the ordinary local courts. There seems to be no doubt that this is the court which is shortly afterwards called the Court of Star Chamber. Its exact connection with 102 ENGLISH CONSTITUTIONAL HISTORY the Council is a matter of very considerable doubt. The jurisdiction assigned to it concerned a class of cases with which the Council would ordinarily have dealt, and it cannot be supposed that the Act which set up this new court was intended to deprive the Council of a portion of its judicial authority. The powers of the two bodies, therefore, were in ' Proihero, these special matters concurrent.^ Moreover, no one questions '^'"" that the two courts remained separate until at least 1529, at 20 Hen. which date an Act was passed confirming the jurisdiction VIII. c. 20. of the Star Chamber and adding the President of the Council as an eighth member. Beyond this date, however, all clue of the connection of the two bodies is lost. It is generally said that towards the close of Henry VIII's reign, the special work for which the small Star Chamber was created having been accomplished, its separate existence came to an end or, rather, was merged in the general authority of the Council, so that the Star Chamber became what it is thought to have been before the Act of Henry VH, the whole Council sitting in its judicial - Hallam, i. capacity.- Thus all Privy Councillors were ex officio members 50-54. of the Star Chamber, and since the powers of the Star Cliamber Biisch rested more upon law than the corresponding powers of the England Council, the Council preferred to exercise its judicial functions tinder t/ie under shelter of the Act of 1487, and by the addition of the I udoys, 1. ^ I J J 38g. two Chief Justices to the whole body of Councillors for such ■i Proihero cases, to seem to keep within the meaning of the Act.^ But cv. this could have deceived no one ; for under Elizabeth and the first two Stuarts the Star Chamber exercised a jurisdiction far wider than any conferred by the Act of 1487, although only similar to that of the Council itself before that date. More- over, it may well be doubted whether the two bodies were ever regarded as identical. In the first place, the Privy Council as such still continues from time to time to exercise its old criminal jurisdiction, although in numbers of cases it relegates the trial of offenders to the Star Chamber. And secondly, it is asserted that ' all contemporary authority on the subject of the Star Chamber points to the inclusion of men whose dignity or learning strengthens the Court, but who are outside the circle of habitual advisers of the Crown.' In other words, even if all Privy Councillors were ex officio members of the Star Chamber, the converse was not the case, and the Star THE EXECUTIVE 103 Chamber contained in addition some who were not habitual councillors. Finally, the Long Parliament abolished the Star Chamber on the ground that it had greatly exceeded the powers conferred on it by the Act of 1487, to which it owed its origin. There is plenty of weighty authority to show that this was historically erroneous, and that the Star Chamber existed long before the Act of 1487.' But it ^ Cf. ex- seems very probable that, by the end of Elizabeth's reign at y^^ll '" the very latest, the Star Chamber was a separate body from the 175, 401,' Council, and that a distinction was drawn between them ' as 4o8. to their composition and as to the matters dealt with by the two courts.' Thus it was possible for the Long Parliament, while abolishing ' the court commonly called the Star Chamber,' also to limit the civil jurisdiction of the ' Council table ' or Privy Council.-' We are so accustomed to regard the Star 2 Anson, ii. Chamber as an engine of oppression that it is important to 98- notice that its unpopularity was of comparatively late growth. Under the Tudors it did a much needed work as ' a tribunal constantly restored to as a resource against the ignorance and prejudices of a country jury,' and the verdict of the historian is that ' in such investigations it showed itself intelligent and impartial.' •* Even under James I it has been pointed out that » Gardiner, ' a very large part of the business that came before it arose v"- 84-85. from suits brought by private persons.' It was probably true that the hatred bestowed upon the Court was due to the use to which the King put it in his quarrel with Parliament and the people, and most especially to its intermeddling in the ecclesiastical disputes.^ ^ Prothero, To return to the development of the Council in its admin- cvi. istrative capacity. Under the Tudors the Council was all powerful : there was nothing which it might not do, and in its admin- which it might not interfere. Two chief points call for notice, istrative In the first place, it became a much larger body, numbering, as we find at the beginning of Edward VI's reign, no less than forty members. This body was divided into six committees for different branches of the Council's work ; but one of these, that of the State, seems to have been so much more important than the others, that it probably consisted of the privy as opposed to the ordinary councillors, a distinction which must have increased rather than diminished since the time of 104 ENGLISH CONSTITUTIONAL HISTORY Henry M, and would account for the fact that Henry VHI on many important occasions acted without the concurrence of his Council. The second important point is that the kitig acted through his secretaries in preference to other councillors. Origin of The office of king's secretary or clerk dates from the reign of Secretaries Henry HI, when its holder formed part of the royal household, and took over some of the work which had hitherto been dis- charged by the Chancellor and his clerks. At first the office conferred no political influence ; but in the fifteenth century its holder was made responsible for the use of the signet. It was under the Tudors that the secretary became a great political officer. Since 1433 there seem to have been two secretaries. They now ceased to be officers of the household : the post was given to men of distinction, who became ex-officio members of the Council. Under Elizabeth they were first called Secretaries of State, and one of them became the exponent of the royal will in the House of Commons. When we turn to the Stuarts, we note a manifest though gradual decline in the authority of the Council. As far as outward signs went, it was never so powerful as at the beginning of the seventeenth century ; at any rate it was never so assertive. But there are manifest proofs that it was unequal to its work, and could not cope with the new difficulties which had arisen from the position taken up by Parliament. Thus, the Council under Charles I reverted to the custom of the Yorkists, and contained a large number of nobility ; while a prominent place was given to the bishops. Together with this anti-popular movement went a great decline in administrative talent. The secretaries were no longer men of first-rate ability, such as Thomas Cromwell and Sir William Cecil, or the real advisers of the Crown, but were mere creatures of the king, a Sir John Coke or a Windebank, whom the Commons overrode or ignored. Tl^g § 16. Meanwhile the numbers of the Privy Council had been Cabinet. growing. The distinction between the effective and honorary members was as old as the Council itself. It was a natural division ; for it represented those whom the king chose to consult, and those whom it was impolitic to omit from his counsels. The first body would be composed of the holders of ministerial office; but the. latter would claim to be present at the royal Council board. During the political cornplications THE EXECUTIVE I05 of Charles I's reign there are traces that the two bodies were lis origin drifting more widely apart. This became increasingly clear ""der when Charles II retained the old Privy Councillors, many of ' whom had taken part with the Commonwealth. The division of the Council into committees for purposes of administration was no new thing. Under Charles I are found at various times an Irish committee (1634), a special committee for Foreign Affairs, and a Scotch committee (1638). Possibly at Clarendon's suggestion this system was revived. The most important of the committees now established was one for Foreign Affairs ; ^ and it is to this (which after Clarendon's ' Ileam, flight accidentally conferred an undying reproach upon the H^"'''l'j""'f"*c^-' word 'Cabal '), that the origin of the later Cabinet is generally * traced. But it seems that there was a further and purely informal committee with which the king conferred on his most secret affairs, and which 'was distinct ahke from the Foreign Committee, and from the entirety of the Privy Council- '; Anson, It is, however, important to notice that up to the period of the "'■ '°^' Treaty of Utrecht all real affairs of state were placed before the_/«// Council. But Clarendon's system of committees had not solved Temple's the whole question of administration. Indeed, it did not ■''^'"^"^'^• touch the most important question of all, that of harmon- izing the relations of the executive and the legislature. The impeachments of Clarendon and Danby, and the king's attempt to shield the latter by the grant of a pardon while the trial was impending, showed the necessity of arriving at some solution, unless at every disagreement recourse was to be had to desperate remedies. It suited the king to assent to a scheme attributed to Sir William Temple^ by which the •' Christie, Privy Council should consist of thirty members, half of them ^'^^^"fi'-'f: great officers of State, the other half independent members of ^2!;-'"'26. both Houses whose joint incomes should equal that of the whole House of Commons. All should be equally entrusted with every secret of State, and the king should do nothing without their advice. The scheme was a compromise between the king's right to appoint ministers and the exercise of parliamentary control by calling those ministers to account. But it was bound to failure ; for no: only did it reproduce the fault of the constitutional lawyers of the Great Rebellion, 106 ENGLISH CONSTITUTIONAL HISTORY and of Cromwell's constitutions, in that it was based upon the idea of a balance of power between executive and legis- lature ; but, practically, the numbers were too large for administration, and nothing secured the unanimity of the members. Moreover, the king was not ready to resign so much of his prerogative as was implied in the continual consultation of this body. He still acted on the advice of a small number of personal friends, of whom Sir W. Temple, inconsistently enough, consented to be one ; and before 1679. the end of the same year he had dissolved one Parliament against the will of the Council, and another without asking its advice at all. The The ultimate solution of the question between executive Cabinet ^j^^^ legislature was only reached at the Revolution of 1688, under . , "William when the Bill of Rights deprived the king of the undue and Anne, exercise of his royal prerogative ; and the custom of an annual Mutiny Bill and Appropriation Bill ensured the regular sum- mons of Parliament, and rendered it impossible to maintain a body of ministers who were not acceptable to the majority in the House of Commons. But William struggled hard against this conclusion. He not only used every influence at the disposal of the Crown, by the distribution of ofifices and pensions, to obtain a permanent majority of members favour- able to his wishes ; but he even himself undertook the man- agement of foreign affairs, and induced the Lord Chancellor Somers to affix the Great Seal to a blank paper, on which 1698. was subsequently inscribed the first Partition Treaty with Louis XIV. Lord Somers' consequent impeachment led to ^ S. C. the insertion of two clauses in the Act of Settlement ^ designed 53°"' • to secure the responsibility of ministers, which Danby had tried to evade by pleading the royal command, and Somers by claim- ing the connivance of a Secretary of State. The eighth clause enacted that no royal pardon should be pleadable to an impeach- ment : the fourth clause, reviving a practice of the fifteenth century, provided that after the accession of the Hanoverians all resolutions of the Privy Council should be signed by the members responsible for them ; while, finally, the sixth clause excluded from the House of Commons all holders of offices or pensions from the Crown. But the two latter provisions were soon proved to be far too stringent. No one would have THE EXECUTIVE IO7 undertaken the duties and responsibilities of councillorship on the terms proposed ; ' while the exclusion of all ministers would ^^eam, 186. have placed the executive aud legislature in hopeless conflict. At the same time some precaution against royal influence in the House of Commons seemed advisable. Consequently, although the fourth and sixth clauses of the Act of Settlement were repealed,^ two years later the 'Act for the Security of Her '^ 1705. Majesties Person, Government, and Succession '^ incapacitated 4 & 5 Anne, all persons from sitting in the House of Commons, who should ^" ^°' hold either any office created, since October 25, 1705, or at^^°^\ pension at the pleasure of the Crown; and required that any c. 41. member who was appointed to an already existing office, should vacate his seat and subject himself to re-election. Such was the result of an attempt to secure ministerial Under the responsibility by legislation. ' Nothing, therefore, but custom, vgrians.^"*^' based on practical convenience, has worked out the transition from government by the Crown in Council to government by a Cabinet consisting of ministers indicated by the Commons ; — from the legal responsibility of the individual Privy Coun- cillor to the moral responsibility of the collective Cabinet.'"* ^. Anson, This corporate responsibility, which is of the essence of the "" Cabinet system, came chiefly as a result of the growth of the office of Prime Minister. About the time of Edward I the Justiciar, the royal lieutenant of Norman and early Angevin times, was superseded by the Chancellor as the great political officer of the Crown : and he in his turn gave way under the Tudors to the Treasurer, who was on the whole the chief minister until the accession of the House of Hanover. At the same time no minister, however prominent, had the choice of his colleagues or a decisive voice in measures. Between the Revolution of 1688 and the accession of the Hanoverians there are three instances of a homogeneous ministry, but none of them was sufficiently strong to establish a precedent. For, the Whig Junto w^as without a leader : Godolphin, under Anne, 1696-1698. had for some years to put up with Tory colleagues; and the 1702-1708. Tory ministers, who gradually superseded his party were ap- 1710-1711, pointed by the queen without consulting him. Attempts The truth was that circumstances had made the Cabinet "^ the king ' the motive power in the executive of the country,' so that the h^j^^on the king sought every means whereby he might retain at any rate Cabinet. io8 ENGLISH CONSTITUTIONAL HISTORY ^ Hearn, 191. ^ Anson, ii. 111-I18. "* Thojights 0)1 Present Discon- tents. a veto on the action of unacceptable ministers. As he tried to influence Parliament itself by the multiplication of places and pensions and by direct bribes to the members, so he strove to keep the Cabinet in order by including among its metnbers devoted personal followers of the king. Thus, from the reign of William III onwards, besides the committees, either permanent or temporary, which did the work now done in the Foreign Office, the Home Office and the Board of Trade, we find not only the whole Privy Council, which was assembled for formal business, but also a twofold Cabinet — an outer Cabinet including the great officers of the household, such as the Lord Chamberlain and the Master of the Horse, and non-political officers of State, such as the Archbishop of Canterbury and the Lord Chief Justice ; and an inner Cabinet which commanded the confidence of the House of Commons and therefore really settled the policy of the country. It is true that with the accession of the Hanoverians the king dis- appeared from Cabinet Councils,^ and a first minister became both necessary and possible. But, as a matter of fact, the withdrawal of his personal influence made it doubly necessary that he should retain an indirect hold over the deliberations of his ministers. Even Walpole, who was perhaps in any modern sense the first Prime Minister, could not nominate his own colleagues, and was obliged for years to tolerate dissensions in his Cabinet ; while the personal interference of George III, exercised in direct and indirect ways alike, placed his minis- ters completely in the background. The existence of this double Cabinet explains the action of ministers of the eighteenth century in repudiating responsibility for measures carried out by Cabinets of which they were members ;" nor is it less easy to understand how the king, by intriguing with the titular col- leagues, was able to maintain his own nominees in the Cabinet and to thwart the action of ministers. Burke might declaim as he would against the cabal which had been formed ' to inter- cept the favour, protection and confidence of the Crown in the passage to its ministers,' and whose members, while not aiming at ' the high and responsible offices of the State,' took delight ' in rendering these heads of office thoroughly contemptible and ridiculous.'^ It was the king himself, and not, as Burke pretended, a Court faction that was to blame. TIIIC EXECUTIVE IO9 Indeed, so long as this ])crsonal interference of tlie Crown Establish- lasted, the growth of corporate resi)onsibility among the mem-'"*^"':° bers of the Cabinet was impossible : ' and it was in any case responsi- against the interest of the Crown. The ultimate establishment biluy. of the principle was due to its compulsory recognition by the ^ Heam, king in a few isolated instances. Thus, in 1746, the Pelhams, 95-7- who were in office, took a most unpatriotic advantage of the Jacobite Rebellion, and by resigning in a body forced the king to admit William Pitt to office.- In 1763 Pitt himself followed - Seeley, this up by refusing to take office except in a Cabinet of his p"?-^.. . own composing, and thus obliged the king to continue the Science, Crenville-Bedford section of the Whigs in power. But the 281. first definite recognition of this corporate responsibility may be said to date from 1782, when the second ministry of Lord Rockingham omitted all titular colleagues and was composed only of eleven persons, all of whom held high political posts and were cognizant of all measures taken. The system of a double Cabinet was, however, only gradually abolished. In the per- son of the Lord Chancellor especially the king attempted to maintain a permanent spy upon the other ministers. Thus, in 1792 the persistent opposition of Lord Thurlow, who had been Lord Chancellor with one short interruption since 1778, forced the younger Pitt to offer the king an easily chosen alternative between his own resignation and that of the Chancellor.^ The ^ Heam, first principle dealing with the titular Cabinet was formulated 200. in 1801, when Pitt's Chancellor, Lord Loughborough, claimed to remain, though without office, in the Cabinet of his suc- cessor. Addington met his pretensions with a statement that ' the number of Cabinet ministers should not exceed that of the persons whose responsible situations in office require their being members of it.' But the difficulty lay not only with the king's desire to make the ministers feel his power, but with the extreme reluctance Reluctance of the ministers to submit themselves to the overshadowing to acknow- authority of a Prime Minister through whom alone such moral p'^^'^.^ responsibility could be realized. Walpole himself definitely Minister, repudiated the position;^ and even so late as 1806, when ■• Morley, objection was taken to the appointment of Lord Ellenborougli, ii^'^lpole. Chief Justice of the King's Bench, to a seat in the Cabinet, ' ^' on the ground that he might be at once prosecutor together no ENGLISH CONSTITUTIONAL HISTORY with the rest of the Cabinet and judge, the other ministers refused to accept this plainly stated doctrine of mutual re- 1 Campbell, sponsibility.^ Indeed, so essential was it before the Reform Lives of Chief /iistices, ii. 451. Relations of the Cabinet (a) to the Crown. Bill that the head of the Ministry should possess the confidence of the king, that the real leader of the Government often held a subordinate office, while the First Lord of the Treasury, like the Dukes of Grafton and Portland and the Marquis of Rock- ingham, were but the nominal leaders. It was only with the cessation of corruption and the formation of strong parties over the question of Parliamentary Reform that Cabinet government, as we know it, can be said to have been attained. The result has been that at any given moment the general direction of the policy of the country is in the hands of a body of men, who are individually the heads of the chief departments of the executive government, and are collectively the nominees of one of their number, the Prime Minister. He commands the confidence of the majority in the House of Commons and, no matter how successful their own administration, with him they stand or fall. Thus while on the one side the method by which the Cabinet is formed ensures an unanimity in its advice to the Crow-n and a secrecy in its deliberations ; on the other side its individual members, as heads of departments, have direct communication with the sovereign. Moreover, the concurrence of the sovereign is necessary for their individual dismissal : although a Prime Minister wishing to get rid of a colleague can practically always force the king's hand by the alternative of his own resignation. With the final extinction of the double Cabinet, too, the attitude of the Crown towards its ministers has become defined, and it is an accepted principle that the king must neither ask advice outside the Cabinet, nor act without its concurrence, nor refuse his support so long as the ministers retain the confidence of the people. For, although the legal responsibility of each minister can only be enforced through his position of Privy Councillor, the Cabinet is not the Privy Council. This body consists of no less than three sets of members — the Cabinet for the time being and members of former Cabinets ; the holders of great offices of State unconnected with politics ; and eminent men on whom the rank is conferred as a compliment. Thus only in a very general sense can the Cabinet be even THE f:xecutive I I I called a committee of the Privy Council ; for it is unknown to ' Cf. law, its numbers and qualifying offices are indeterminate, and ^^?^l^^': of its deliberations no record is preserved.' 154-160! The relation of the Cabinet to the Commons has undergone Gladstone's considerable change. Before the Reform Bill a minister who y'^^""^^^^ '^ ^ 1. 224 et enjoyed the confidence of the Crown could use all those means seq. at the king's disposal to procure a majority in Parliament. From 1832 to 1867, the date of the second Reform Act, (joniiiions ministers did not retire until they had faced the new Parliament and had been definitely defeated. Since 1867, with the ex- ception of the election of 1892, the verdict of the country at the polling booths has been 'so clear that a Cabinet to whom it has been adverse has not waited for the meeting of Parliament in order to make way for one which will command a majority in the new House of Commons."' Such is the Cabinet system 2 Anson, ii. as it has worked itself out in two centuries. The lateness of 138-140- its recognition may be gathered from the fact that Burke is the first writer who mentions it, while the founders of the American Constitution gave it no place in their polity. Meanwhile, certain tendencies may be noticed which are not unlikely to work a transformation in this mode of administration. The Cabinet itself is becoming so large from the increasing number of departments whose heads must be included within it, that the real decision of policy seems to rest with an inner body of the three or four most indispensable members.'' At •' Lord the same time, the ever-increasing interference of Parliament I^osebery, ... 1 iti, 109. with the administration cannot but be viewed with alarm by all who appreciate the necessity of prompt and vigorous action. And this tendency to minute criticism on the part of the Commons intimidates all but the strongest ministers, while the very contrast of his position with that of his colleagues places a popular favourite in an almost dictatorial position. Thus, finally, it is the people and not Parliament, the polling booths and not the lobby, which appoint the Prime Minister and even nominate to him some of his subordinates : and a doubt may perhaps be allowed whether a plebiscite of this character, and even of this size, is not as liable to sudden whims and inconsiderate action as the single chamber which political philosophers and practical statesmen alike deprecate. 112 ENC.LISII CONSTITUTIONAL HISTORY The modern § 17. Both the existence of the Cabinet and the large depart- number of its members bear witness to the continually increasing nients 01 , . . . -* o Govern- subdivision of the functions of Government. From the stand- ment. point of the present day, administrative offices may be divided into three classes. The first of these consists of two great offices which are 7ww put into com7nission. The Admiralty^ which has succeeded to the work of the Lord High Admiral, The Trea- is dealt with elsewhere. The Treasury^ has a longer history. sury. TYiO. Treasurer was originally the custodian of the royal hoard Anson, ^^ at Winchester. As an officer of the Exchequer he received '^' the accounts of the sheriffs, and appointed officers to collect - S. C. H. the revenue.- He was, however, subordinate to both Justiciar fev, 122, 12 . ^^^ Chancellor, until the separation of Chancery from the Exchequer under Richard I removed him from the influence of the latter, and the abeyance of the Justiciarship under Henry HI freed him from the former. The separation from Chancery necessitated the appointment of a Chancellor of the Exchequer, with charge of the seal of the Exchequer, which in Exchequer business took the place of the Great Seal of the //6/rt'. Chancellor.'^ Under Edward I the appointment of a Chief ^ Baron relieved the Treasurer of the judicial business of the Exchequer. The latter gradually became a great political officer until, under the Tudors, with the more dignified title of Lord High Treasurer, he superseded the Chancellor as first minister of the Crown. The two great holders of the office were Lord Burleigh and his son, the Earl of Salisbury. On the 1612. death of the latter, the Treasury was put into commission and was gradually separated from the Exchequer. During the seventeenth century individuals were still occasionally ap- 1714- pointed to the office: but since 1714 it has always been in commission. Previous to 17 11 the Crown nominated all the Lords of the Treasury : since then this has been the privilege of the First Lord, who, with few exceptions, has himself acted as Prime Minister. The exceptions have been created either by a rivalry in the Cabinet, which caused the real leaders to take subordinate offices under mere fiicil on Education was established in 1856. In "1830 the first annual sum granted by Parliament 1856. in aid of education was administered by the Treasury. In 1839 an increased sum was given to the care of a committee of the Privy Council, which speedily became a department and gained permanence by the power, bestowed by statute in 1856, to appoint a Vice-President of the committee who should be under the (not entirely) nominal headship of the President of the Council. This has prevented the Education Department from becoming independent, and has kept it as a real committee of council.^ In all the four previous cases the boards consist ^ Ibid. of a head and a small number of high officials. Thus the 196-197- Local Government Board is composed of the Lord President of the Council, the Secretaries of State, the Lord Privy Seal and the Chancellor of the Exchequer in addition to its own President. But in all four cases the Board is merely ornamental, I 114 ENGLISH CONSTITUTIONAL HISTORY The Secretariat. 1782. 1794. 1854. 1S58. ^ Anson, ii. 166-167. ' Ibid. 227. et seq. 3 Ibid. 378. * Ibid. 199. and the whole work is done by the respective heads — the Presidents of the Boards of Trade, Local Government and Agriculture, and the First Commissioner of the Board of Works. The third class of offices consists of .the five Secretaries of State. The origin of the office has been already noticed. Until the end of the eighteenth century there were generally two Secretaries of State; although between 1707 and 1746 a third was appointed for Scotch affairs, and from 1768 to 1782 Colonial matters were given to a specially appointed Secretary. After the Revolution of 1688 the work was divided between a northern and a southern department, the latter including Ireland, the Colonies and home affairs. In 1782 the northern department became in name what it had been in reality, the Foreign Office ; while the southern department as the Home Office still dealt with Ireland, the Colonies and some part of the management of the army. In 1794 the exigencies of the War of the French Revolution caused the appointment of a special Secretary of State for War to whom, in 1801, was transferred all business connected with the Colonies. So it remained until the Crimean War, when the Secretaryships for War and the Colonies became separate. The last addition to the Secretariat was caused by the transference of I}idia to the Crown in 1858.^ Theoretically the division of the secretariat is a mere matter of administrative convenience. Every one of the five is equally capable of discharging the duties connected with any of the four departments other than his own. But the Home Secretary is the principal Secretary of State, and as such has, in addition to the general supervision of law and order within the United Kingdom, certain ceremonial relations to royalty itself." Three secretary- ships of a lesser degree of importance may be noted in this place. The Secretary at War lasted from the beginning of a stand- ing army under Charles II until the office was merged in the more recent but greater Secretary of State in 1854.''' The Irish Act of Union in 1801 made the Chief Secretary to the Lord Lieutenant the principal medium of communication for Ireland, and although recent circumstances have exalted the holder of the office to Cabinet rank, teclinically the Home Secretary still remains responsible for Irish affairs.'' A separate Secretary for THE EXECUTIVE II5 Scotland was only appointed in 1885, but is not, like his temporary predecessor for forty years after the Scotch Union, necessarily a member of the Cabinet.^ 1 Anson, ii. Two other classes of ministerial officials demand a passing 200. notice. A Cabinet always includes one or two of what would elsewhere be called ' ministers without portfolios,' that is, holders of practically honorary offices whom, for one reason or Other another, it is desirable to place at the centre of the adminis- '^ J^"g^"S ' ' omces. tration. Such are the Lord President of the Council,-^ and 2 ^nson ii. the Lord Privy SeaV generally, though not necessarily, members 151. of the House of Lords, and the purely local Chancellor of the " ^'*^'^- '59- Duchy of Lancaster."* A second class is formed by the ^ //^zV/. 197. Law Officers of the Crown — the Lord Chancellor, a peer and President of the House of Lords (for whom, however, has sometimes been substituted a Lord Keeper, who, although President of the House of Lords, is not a member of it) ; the Attorney-General, who dates back to Edward I ; and the Solicitor-General, originating under Edward IV as the royal adviser in matters connected with Chancery business.^ •'"' Ibid. 201. All the officials enumerated above are ministerial ; that is, although not all necessarily, and some never, members of the Cabinet, yet they all change with a change in the Government. The Cabi- The necessary members of a Cabinet would seem to be the "^"^ ^""^ ^^^ First Lord of the Treasury and the Chancellor of the Exchequer, Qvifser- the Lord Chancellor, the First Lord of the Admiralty, and the vice. five Secretaries of State. All these, and indeed all ministers, must now almost of necessity sit in Parliament. The last instance to the contrary was Mr Gladstone's retention of the Colonial Secretaryship for six months in 1846 owing to his 1846. failure to obtain the necessary re-election.'^ For upon the e jbid, 202. various heads devolves the duty of defending their respective departments from criticism in Parliament. The policy of each department is settled by its temporary chief; but the executive work is done by a large permanent staff, who are admitted })artly by patronage, but chiefly by competitive examination, who do not change with the Government, and who represent the specialised knowledge and the traditions of management connected with each individual department. All these officials are by statute excluded from seats in the House of Commons. CHAPTER III THE LEGISLATURE Witan, Cotmtiune Concilium^ and the House of Lords. Origin of the Witena- gemot. ^ Bagehot, Physics and Politics^ 158. ^ Ancient Law, chap. i. S. C. 56. :. II. § 18. An acute historical observer has told us that mankind owes its freedom from the bonds of archaic custom to the growth of government by discussion.^ It is, then, to the kind of assembly by which such discussion was encouraged that we must turn in order to discover the principles of national pro- gress. We are wont to regard legislation as the chief work of our modern Parliament ; but law is a comparatively late growth in the record of a nation's history. Sir Henry Maine has de- scribed the transition from the 'separate, isolated judgements' of a divinely descended king to the customary law maintained by the memory of a religious or political aristocracy, and so to the period when the diffusion of the art of writing suggested the formation of a legal code.- It is in the second of these periods that the age of discussion begins ; and it is by means of this discussion that the customs are preserved as a useful check on the anarchic elements of the rudimentary stage of life ; while they are insensibly but appreciably modified into a means of national advance. The earliest records of the English tribes recognise the existence of government by dis- cussion. The majority of the tribes who came under Tacitus' observation were not under kingly rule ; but whether they were monarchical or not, the power was wielded by the tribal assembly, and it is especially noteworthy that, while the principes or chiefs care for smaller matters, all important affairs are decided in the general assembly which consists of the whole body of free warriors. •'' THE LEGISLATURE II7 In the lapse of centuries the positions were exactly reversed. Connection AN'hat may be called the committee of principes developed into between . . • . the Witena- tlie WiTENAGEMOT, or council of wise men, with whom, in con- „emot jimction with the king, lay the decision of all important and the matters. Whether any power remained to the general body '"^•^"^oo^- of the freemen — the folkmoot, as it was called, is a point of considerable dispute. Dr Stubbs ^ believes that in the small ' S. C. H. kingdoms of the so-called Heptarchy there was a Witenage- ^ ^'" mot and a folkmoot, and that as each small kingdom became conquered by a larger neighbour, its Witenagemot disappeared or was absorbed in that of the greater power, while its folk- moot remained in the slightly altered position of a shiremoot. Dr Gneist,^ on the other hand, is of opinion that, in the ^ Hist, of smaller kingdoms at any rate, the Witenagemot and folkmoot :^"'^'' ^^'"^• ? . . 1. 99. were practically identical. Mr Freeman would prolong the council described by Tacitus. 'The ancient Mycel Gem6t was a body in which every freeman of the realm had, in theory at least, the right to attend in person,' which right, he adds, ' simply died out in practice and was never formally taken away.' He instances ' the many passages in our early writers in which very popular language is used, those in which the gathering of great crowds is spoken of,' and adds, ' there is nothing wonderful in supposing that the great mass of the qualified members of an assembly habitually stayed away ; it is much harder to believe that ever and anon crowds of unqualified persons thrust themselves into an assembly in which they had no right to appear at all.' ^ Mr Kemble, 3 Essays, whom Mr Freeman has followed, collected scattered notices of 4th Series, over 140 meetings of the Witenagemot between 596 and 444-447. 1066 ;* but nearly all the passages which refer to meetings o{ ■^ Saxons a popular body, are concerned with the election of kings and ^," ^Z^^' , 1 • r ^ ^ i • i i r land, 1. the promulgation or the laws, matters to which the assent of 2o-'-2^o. the populace would wisely be invited. The rare use of the word Witenagemot seems to show that Compo- it was not a very definitely formulated body. We generally p^'"" '"^"^ hear of the Witan, the wise men, and the description points to the Witena- a personal rather than an official body. In process of time the gemot, composition and powers of the Witan may have obtained a more settled form. The share which they take in the king's grants of bookland seems to diminish in importance; from necessary 252 Il8 EN{U.ISH CONSTITUTIONAL HISTORY Domes- assenters they become merely attesting witnesses.^ Again, what- day^ 247- gygj. ,-,-,,^y h^ye been the early custom, their meetings were held, at any rate in the later days of Anglo-Saxon rule, at regular times, at the three great Church festivals of Easter, Whitsuntide and Christmas. Finally, the members of the ordinary assemblies came to be the royal family, the national ofificers both ecclesiastical and civil, such as bishops (to whom were added later a number of abbots), ealdormen, and finally mi>nstri or royal nominees. These latter would include persons in all kinds of relations to the king, and probably the increase or diminution of the royal power can be. marked by an increase or diminution in the number of ininistri who attest the acts of the assembly. Thus a powerful king would balance the influence of the national officers with a sufficient number of his personal friends. For, although on occasions he might be able to override the decisions of a hostile body, it was strongly in accordance with custom that he should act with and through his councillors. Indeed, although it lay in the power of the Witan not only to elect the king, but even as a last resource to decree his deposition, the authority of the elected king was co-ordinate with that of the electing body. It is possible, therefore, to lay down some general principles as to the powers of the king's advisers in the closing centuries of Anglo-Saxon rule; Thus in legislaiio?i, the king, following the ' traditional theory of all the German races,' enacted all laws, ecclesiastical no less than secular, with the counsel and consent of his Witan. Until quite the end of the tenth century no taxatio7i was required, but the first levies of the shipgeld and danegeld were raised by their authority. As a deliberative and administrative body, they were called upon to witness, and thereby nominally at least to assent to grants of land, and to take a definite share in the more momentous questions connected with peace and war. With certain restrictions the purely official members, the bishops and ealdormen, were elected, or more strictly co-opted by the existing members. Finally, in defiance of modern theories of division of powers, this legislative and administrative body acted also as the supreme court oi justice, whether in the last resort or in cases where otherwise it would have been difficult to bring offenders to justice. § 19. The issues involved in the dispute over the composition THE LEGISLATURE II9 (if the Anglo-Saxon Witenagemot are simple compared to those The Curia which have been raised in connection with the Council of °f ^^^ ,,..,,. Til- T^ r> T 1 1 t JNorman WiHiani 1 and his successors. Dr. Stubbs has taught us to ^^1^1 pij^^ita- bclieve that the ' plan of the Conqueror was simply to dovetail genet a feudal superstructure into the fundamental framework of the '^'"^^• Anglo-Saxon polity .' ^ Thus in pursuance of this plan, while on ^ Preface the one side he perpetuated, among other institutions, the old ^j/.f'^ ' English Witenagemot with its qualification of official wisdom ; lii-iiii. on the other side he added as a condition of membership the new feudal status of tenure-in-chief of the crown. As a result, the king was able to exercise so much choice among his tenants-in-chief as is implied in the formula that while all members of the AVitenagemot were tenants - in-chief of the Crown, all such tenants were not entitled to be numbered among the Witan. In other words, the Witan remained what they had previously been — an assembly of Magnates. Nor did this new feudal title entirely overlay the old qualification of official wisdom ; for, the king from time to time introduced into the assembly other councillors, such as papal legates and bishops from his foreign dominions, whose only claim to be present would rest upon the royal summons ; while the English bishops, though endowed with baronies, claimed their seats by virtue- jiot of their tenure but of their office. Thus the Council of the Norman Kings can be said no more to have been based solely upon tenure- in-chief of the Crown than is the modern House of Lords upon hereditary peerage ; although in each case the qualification mentioned might well be quoted as the chief characteristic of the greater number of the members. But this view has been subjected to considerable criticism. In the first place it appears that not only is 'Witenagemot' not a technical term in Anglo-Saxon times, but the only authority for the continued use of the word Witan after the Conquest is the old English Chronicle, the compiler of which would be led by habit and patriotism to keep the old name. This may perhaps be granted. In the next point the critics are at variance among themselves, for while one insists that the Conqueror's Councils were feudal courts of vassals, and '^ Round, therefore from the first must have been composed of all his "*", tenants-in-chief,'- another lays so much stress on the great 143-147. 120 ENGLISH CONSTITUTIONAL HISTORY development of Norman feudalism on English soil as to imply that we cannot argue back from the recognized principles of 1 P. mid M. a later period.^ But all those who believe in William's intro- 41-87. Its com- position. 81 ^- S. C. Will. Malmesb iii. § 279. S. C. H. §124. duction of feudal ideas seem to be agreed that under William I Curia Regis — the Norman equivalent for the Witenagemot — was a name applied perhaps exclusively to the great courts held, as the Anglo-Saxon Witenagemot had been held, thrice a year at three definite places, that these assemblies were almost entirely engaged in judicial work, and that the Norman king was far too powerful to be hampered by theories of government. It is probable therefore that the question of the theoretical composition of William I's Council is of no importance^ and in any case would not carry us far. If, then, we discard the name Witenagemot and all to which it is supposed to bear witness, we may repeat that William seems to have had a Curia or Concilium whose most usual members would be his tenants-in-chief. They are described vaguely as barones, optimates, proceres, principes, sapientes ; and beyond the actual holders of ministerial offices — the Justiciar, Chancellor, Treasurer, Chamberlain, Steward and Marshal — to whom may perhaps be added the earls and bishops, they must have been an entirely fluctuating body. Henry I is said to have discontinued the three usual courts ; but although meetings became more frequent,- the Council remained an intermittent body, and the only real business for which it was convened seems to have been of a judicial character. The function which we now especially associate with a deliberative assembly is that of legislation with its necessary accompaniments of discussion and dissent. But this is a comparatively modern idea born of the extreme complexity of life which necessitates the constant readjustment of social relations. To mediaeval administrators legisla- tion consisted mostly of occasional royal ordinances confirmatory or explanatory of old law or existing custom. Circumstances might make it advisable to express the assent of the magnates. Thus William I and Henry I both act ' communi consilio baronum ' ; but the entire absence of any record of discussion justifies us in regarding the expression as a mere form. But the time came when commune consilium or concilium (it is perhaps superfluous to point out that in THE LEGISLATURE 121 Latin the meaning is the same) came to be not the advice given in common but the assembly which gave it. At any rate, according to the general interpretation, the words are so used in the celebrated fourteenth article of Magna Carta, which ordains that for holding the ' commune consilium regni ' for the assessment of scutages and of any aids other than the three aids mentioned in a previous clause, all tenants-in-chief of the Crown shall be summoned in certain specified ways.^ ' S. C. 299. The exact value of this clause in determining the name of the deliberative assembly cannot perhaps be estimated. It may have embodied a word already in common use ; it may have stereotyped and given legal authority to one out of many expressions by which the fuller sessions of the Curia Regis were described. For we have seen, in speaking of the evolution of the Privy Council, that it is not until the end of the fourteenth century that the executive and deliberative bodies can be said to have fallen apart. Long before that, however, as Magna Carta testifies, the deliberative side of the Curia Regis had gained a form and a name of its own, although as yet there was little distinction of powers between the bodies which were soon to be distinguished as the ' King in his Council ' and the ' King in his Council in his Parliament.' But the question of the composition of the Commune Conci- The Com- LiUM cannot be quite so lightly dismissed. It is often supposed '"""^ . that, in accordance with the policy inaugurated by the Conqueror, the Norman and early Plantagenet kings strove to get rid- of feudal influences from the Government, among other ways, by swelling the larger meetings of the Curia Regis until the tenants- in-chief of the Crown should be swamped in a general assembly of all landowners.- This conclusion seems to be scarcely '' Cf. .S. C. II. warranted by the scanty evidence produced. It is true that in ^^ '^3- speaking of the first great instance of such an assembly — that ' at Salisbury, in 1086 — the old English chronicler made it include ' all the land-owning men whosesoever men they were,' but the other accounts, which contain a more precise enumera- tion of the classes summoned, stop short at milites, that is, tenants by military service though they may have been tenants of mesne lords ; while there is absolutely no proof that the assembly was in any way regarded as a Council.^ Similar ^ Round, explanations may be given of the assemblies of 1107 and "^^ "''■ 122 ENGLISH CONSTITUTIONAL HISTORY 1116, which have been cited in illustration of the same prin- ciple. The instances of Henry II's day (1155, 1^77) niay be regarded as equally fanciful. It may be that ' the accepted usage' under the first Plantagenet king was a council composed of the whole body of tenants-in-chief of the Crown, and that these were held to include socage tenants as well as those holding 1 .S". C. //. by tenure of knight service.^ The descriptions of such assem- ^ ^59- blies which are given by chroniclers or in royal ordinances either apply an entirely vague term, such as proceres, sapientes, or enumerate the classes called together. These were the arch- bishops, bishops, abbots, priors, earls and barons. Now, the only one of these classes about whose position there would be the slightest doubt would be the last. The archbishops and bishops would naturally all come as representatives of the Church and of learning, and w-ere for the most part men who had qualified themselves for their present positions by their work as royal ofificials. The earls would be a small and a definite number ; and the official flavour which seems to have hung about them for more than a century after the Conquest, only gradually gave way to the principle of hereditary succession both to the title and to extensive landed possessions, which necessitated their inclusion in any assembly even when they did not hold an administrative post. The term barones would necessarily include all the classes enumerated ; but the abbots, priors and barones, who were otherwise undistinguished, were equally liable to a large and constant fluctuation in their numbers. For in neither case was their any official reason — actual or theoretical — for their presence. The abbots and priors were the heads of wealthy landowning corporations : the barones were tenants-in-chief of the Crown by military service. It was no honour to be sum- moned to the King's Council ; for it meant in many cases a long journey, absence from home at a possibly inconvenient Distinction time, and demands for an extra grant of money. It is perhaps heiween a result of this extreme unwillingness to respond to the sum- "mi'mlnores "^ons of the king that the king's barofies or military tenants- barones. in-chief tend soon after the Conquest to fall apart into two classes. Indeed, Dr. Stubbs thinks 'it may fairly be con- jectured that the landowners in Domesday who paid their relief to the sheriff, those who held six manors or less, and THE LEGISLATURE I23 those who paid their reHcf to tlie king, stood to each other in the relation of lesser and greater tenants-in-chief.' ^ But without ^ S. C. H. committing ourselves to the exact dividing force of a possession § 124, note, of six manors, we may agree with Dr Gneist- that the extent of "^ ^"^■ landed possessions did from the first form a distinguishing ^^'^'^ mark between two classes of tenants-in-chief of the Crown, i. 289. These are respectively noted in the ' Dialogus de Scaccario,' attributed to Henry II's Treasurer, FitzNeal, as the holders of baronies majores sen miiwres ; ^ but the distinction is like that "" S. C. 227. between felony and trespass in mediaeval law, one to be drawn rather from its results upon the individual than from any exact reason for the original distinction. Thus the holders of the greater baronies, called by Magna Carta majores /mrones, appear to have dealt directly with the Exchequer in all their feudal payments ; whereas the others, whom Magna Carta merely describes as omnes illos qui de nobis tcfienf in capite^ were in the first instance amenable to the local sheriff. The distinction may have been based upon an original difference of responsi- bility in the matter of the feudal levy : but the general vague- ness of the means of definition makes it appear as if the Crown purposely left a broad border line between the two classes, so that a number of persons might be placed in one category or the other according to the convenience of the moment. Nor did the directions of Magna Carta immediately clear the ground.^ The Greater Barons, who included the archbishops, ^ Ibid. 299. bishops, abbots and earls, were to be summoned to the § '4- Commune Concilium individually; 'all those who hold of us in chief were to be summoned in general by the royal sheriffs and bailiffs. The individual summons stamped a man as one of the greater Ijarons ; the smaller tenants-in-chief would thankfully regard the general summons as an intimation to stay away ; in the mind of the greater baron, when his order and perhaps when his country was threatened, one summons would raise a presumption of similar treatment on the next occasion. It might be possible to increase the list of the ' majores barones ' : the time could not be far distant when it would become impolitic to diminish it. It is important to inquire how far the chief powers which we Powers of associate with Parliament were conceived of as residing in '^'^^ Com- this somewhat invertebrate assembly which Magna Carta Concilium 124 ENGLISH CONSTITUTIONAL PIISTORY teaches us to call Commune Concilium. If it is possible to trace any development from the even more invertebrate Courts or Councils of the Norman kings, it might be said that such development consisted not so much in the extension of the form of the assembly as in the greater reality and frequency of its action. This, however, must be cautiously expressed. Cer- tainly the kings seem to have consulted their Council on nearly every point, whether it was a definite matter of home or foreign policy, or the state of the kingdom in general. Nor (i)coun- was such (i) consultation necessarily a mere form. Normans ^^'- and early Plantagenets were in a sense equally despotic, and the king would only submit such things as he chose to the consideration of the general Council. Thus there is an almost entire absence of any opposition to or remonstrance against the royal will. A few such cases are indeed recorded, but they seem to have been completely disregarded. Perhaps a more effectual influence over the king was found in the presence of the archbishop, and, especially in secular matters, of the justiciar. At any rate, John writhed under the homilies of Geoffrey Fitz Peter, whom nevertheless he did not venture to dismiss. With this knowledge of both the extent and the limitations of the royal authority, we shall not be surprised to find that in legislation and taxation alike the theoretical power of the Council fell far short of that which it practically exercised ; thottgh in moments the practice strove to conform to the (2) legis- theory. Much of the (2) legislation, whether in the form lation, of Norman Charters or in that of Plantagenet Assizes, was really of the nature of edicts, declaratory and temporary both in form and force. Yet the kings did not hesitate to claim the advice and assent of their Council. The Grand Assize is set on foot; the Assizes of Clarendon (1166), Northampton (1176), and Woodstock (1184), are all equally issued with the assent or at the advice of the great men of the kingdom. But the amount of real meaning contained in such expressions may be measured by the single recorded instance of initia- tory legislation. The Assize of Measures in 1197 was enacted by petition and advice of the bishops and barons. Thus, , „ ^ no doubt, much of this assent to legislation must have §160." ' been merely formal; but Dr. Stubbs reminds us' that if it THE LEGISLATURE 1 25 had been more of a reality, it would, like much of the judicial power, have become a monopoly in the hands of the barons and their representatives ; whereas the real exercise of the legislative power was not taken out of the hands of the king until the people and the barons were united in a common cause. That some form of application in the matter of (3) taxatio?i (3) tax- was observed by the Norman kings seems probable, both ^tion, from Henry I's description of a certain aid as that ' which my barons gave me,' and from the engagement contained in the Order for the holding of the Courts of the Hundred and the Shire,^ that in the future he would summon the 1 5. c. 104. Courts when his royal needs required it, which may be in- terpreted as a concession on the part of the king to the necessity of popular consultation. The amount of meaning in these forms may be judged from the usual expression of the chroniclers with regard to Henry II and his sons, that the king took a tax. It is true that under John a slight change of form is to be observed. In 1200, John ' demanded ' an aid from the whole kingdom ;- in 1204, a scutage of two-and-a-half- Jbid. 272. marks from each knight's fee is said to have been granted to (^^ „gs the king;-' in 1207 he came to an agreement with his bishops a //,/^^_ 073. and abbots as to the amount of an ecclesiastical grant, but it Matt. Par. is immediately added in the case of the laity that the king ^°9. ' determined ' that every one should give him a thirteenth part of their possessions.^ This last, indeed, expresses John's real ■! ibid. 273. attitude in the matter, and the more constitutional expressions ^^_^^ must probably ' be interpreted of the mere payment of the Waved, money.' ^ Here at all events there is opposition to the Crown, s .s". C. H. but it is based throughout on the feudal idea of a voluntary § 161. aid from the tenant to relieve the lord's necessities. The result of individual opposition was that important questions were not fought upon their merits, and their solution was thereby delayed. The objection was based upon quibbUng grounds — the rights of a class, as when Bishop Hugh of Lincoln refused his assent to a grant for the maintenance 1198- of 300 knights, on the plea that the lands of his church were bound to render military service in England alone "^ — or the " .S". C. 256. promise of the individual, as when Archbishop Geoffrey of ^^'^ ^^^ York, in 1201, and again in 1207, resisted the levy of a caru- 126 ENGLISH CONSTITUTIONAL HISTORY cage on the plea that he had not promised it. i\ more hopeful sign of advance is the occasional remonstrance of a class. 1 194- Thus, in 1194, the Canons of York refused the fourth part of their moveables for King Richard's ransom ; while in Arch- 1207. bishop Geoffrey's resistance to the carucage he was the mouthpiece of the whole body of prelates. This change of. attitude was doubtless due to the spread of the incidence of taxation from land to moveable goods, from real to personal property ; and it brings in its train the idea that taxation and representation go hand in hand. But the legal definition lagged here, as usual, behind the actual fact ; for the twelfth article of Magna Carta makes no provision for the levy of a tax on moveables by consent of those who are called on to pay. The last power of the Commune Concilium to be noticed is (4) justice, its function as a (4) Court of Jtistice. As a matter of historical development this was the earliest and for some time by far the most important work in which the assembled barons took part. We have seen that the formal Curia of the Norman kings met thrice a year, chiefly for judicial work. But Henry II made the Curia Regis a tribunal of ordinary resort, so that the fuller meetings which answered to the Commune Concilium of the Charter may have been primarily concerned with more strictly political duties. But this was merely a matter of convenience. The king was as yet scarcely conceived of as the fountain of justice in the meaning of the later law. In the Curia Regis, no less than in the local courts, the suitors were the judges ; that is, it was the duty of the barones who attended to find the ' /'. and M. judgement at the king's request.^ Thus, however much power '• 135-136- might' be delegated to bodies, whether temporary, like the itinerant justices, or permanent, like the Courts de Banco and Coram rege, yet there remained a reserve of equitable power to the king and his Sapientes, the representatives of the Anglo- Saxon Witan, the Commune Concilium of the Charter. It is for taxation that Magna Carta insists that they shall be con- sulted. Perhaps it was superfluous to insist upon the judicial functions of the tenants-in-chief of the Crown. Thus we may agree with a recent author that 'the real fountain of justice - I'ike, was the Commune Concillium Regni,' which afterwards became Hoiise of /^g ^g gj^^j^ \\z.v& occasion to notice) ' the King in his Council Lords, >,._,,. , ., ' ^ 28 n in his Parliament. - THE LEGISLATURE 12/ § 20. ^\'ith the signing of the Great Charter opens the chief Origin of transitional period in the history of the Enghsh Legislature. f2[l.'!!"2q"c!' It is necessary to deal with the constitutional history of the next eighty years more chronologically, and at times in greater detail. P>om the preceding account of the Commune Con- cilium two important points should stand out clearly — first, the early and growing separation of the tenants-in-chief into two classes ; and further, the indistinct line as yet drawn between the various aspects of the Curia Regis. At the same time it must be borne in mind witli reference to the Charter itself, that, while its real importance lay in the fact that it was the outcome of the first national movement in English history, the provision j?iade in it for the maintenance of national rights ivas one based on fnereiy feudal considerations. The results of Results of this were most important on the future development of the ^?|^ t-^reat national assembly. For, in the first place, while the king, or rather the regents under Henry III, no longer summoned any other than tenants in-chief to the Commune Concilium, the (a) minor tenants-in-chief interpreted the general summons to which alone they were henceforth constitutionally entitled, as an intimation that their presence was no longer desired. At the same time the king endeavoured to get rid of baronial dictation by surrounding himself with a body of foreign kins- men and dependants. The most selfish instincts of the Majoixs Barones were immediately called into play, and their objects were narrowed down to the simple endeavour to get rid of the foreigners w ho were monopolizing the posts which the barons regarded as peculiarly their own. Thus (Ji) all the early schemes of constitutional reform were oligarchical in character. The king was gradually driven to look elsewhere for support. On the enforced banishment of the foreigners he turned for help to the lesser barons and the shire courts, indignant equally with himself, though for very different reasons, at the oligarchical character of the Government. But a very short experience showed them that Henry was using his new friends merely to recover his own lost power, which would be exercised in the recall of his old allies and foreign friends. This finally provoked the more statesmanlike among the greater barons to put themselves at the head of a party which in a very real sense represented the feeling of the whole nation. Prepara- tion for Parlia- ment, 1215-1237. 1238-1265. 1265-1295. 1295-1334- 1215-1237. Divorce of the minores barones from the Commune Concihum. 128 ENGLISH CONSTITUTIONAL HISTORY 'AT he time which Hes between the passing of the Charter and the completion of a national organisation may be divided into four fairly distinct periods. During the first of these the general interest centres in tlffe struggles with the foreigners ; and the constitutional advance, though interesting and noteworthy, lies below the surface. The second period contains the schemes of baronial reform, ending in Simon de Montfort's celebrated contribution to the system of national organisation. To this succeed thirty years, during the greater part of which a series of royal experiments culminates in the determination of the elements of which all future Parliaments should be com- posed. Then for the next forty years the various classes were trying their strength against each other, with the result that they formed themselves into the two modern Houses of Lords and Commons. The constitutional interest of the first period lies in two directions. In the first place, there must be noted the growing separation behveen the greater and lesser tenants-in-chief. This was immediately due to the arrangement of Magna Carta and to the natural burden of attendance, which would weigh all the more heavily on the smaller tenants, now that they found their presence regarded as superfluous. Meanwhile, the ener- gies of the minores were being drawn in another and a more fruitful direction. We have seen that the important point in the tenure of land was not the status of the holder so much as the performances of services from the land. Thus many tenants-in-chief, in the acquisition of new estates, became sub- tenants holding of mesne lords. At the same time alienations, mortgages, and other complications to which the Crusades had given rise, had so split up the old estates and altered their boundaries, that grades of rank, at least among the smaller freeholders, had largely disappeared. AVhen, therefore, the increased activity of the shire courts which marked the early years of Henry Hi's reign, threw together the smaller tenants- in-chief of the Crown and the knightly tenants of the greater barons, the two found no difficulty in concerted action. Their interests were chiefly local in opposition to the more purely class interests of the greater barons ; and the holding of a tenant by knight service would tend to be the same in extent whether he held directly of the Crown or from a mesne lord. THE LEGISLATURE 1 29 Nor is it without significance for our purpose to note that this increased activity of the shire court was due to the frequent occupation of the local bodies with matters of taxation. Activity of The assessment and collection of the sums granted by the !^*^ ignores ^ ^ liarones Commune Concihum were the business of The shire courts ; i^ local and the knights appointed for these purposes were habitually govem- fetver in number than those who were called into co-operation with the royal officials for judicial business. Thus, in 1220, two knights were to be elected in each shire to collect a carucage ; ^ in 1225, four knights from each hundred ^ 5. C 352. assess and collect a fifteenth on personal property;^ in 1232, -i ibid. 335. knights of no specified number assist in the assessment of a fortieth;^ in 1237, four knights, for whose appointment ^ /(5?V/. 361. no provision is made, take a share in receiving assessments towards a thirtieth from a representative body of each vill.^ ^ Ibid, 367. This restriction of number in the persons locally employed, doubtless both suggested the idea of collecting the local assessors into a single body and rendered it possible of fulfil- ment. Thus it is not astonishing to find that, when a new central represefitative assembly was called in 1254, the object was to gain its assent to a grant of money. It is important to trace the growth of the idea of represen- Union of tation by election. After the Norman Conquest, the feudal ^^(^^^3^^ ^" theory, which had been foreshadowed in English police arrange- election, ments of responsibility, regarded the lord as representing his vassals ; and only on this supposition can the curious expression in a writ of 1237 be explained, that the lords made the grant of a thirtieth ' on behalf of themselves and their villans.' ^ It ^ -S". C. 366 is, however, in the jury system that the combination may be gradually traced between the two ideas of representation and election. The first step in this direction was taken by the Conqueror and his successor in their use of (i) the system of local representatives to gather information. Henry II extended the system to (2) ascertain the rights and liabilities, judicial and financial, of his subjects through the co-operation of the local courts : while under Richard I these representatives (3) were elected and not merely nominated, as seems to have been the practice in his father's days. Instances of the whole process will be found in a detailed description of the growth of the jury system," Curiously enough John was the first to (4) s Chap. vii. K I30 ENGLISH CONSTITUTIONAL HISTORY 1213. 1 S. C. 276, Matt. Paris, 239. 2 /did, 287. » .S. C. 283. ■* /did. 299. § 18. ' Ibid. 345. §13- summon a representative assenibly. In August, 1213, the king assembled through the sheriffs the reeve and four men from each vill on the royal demesne to a Council at St. Albans,^ for Ihe purpose of assessing the amount of com- pensation whiclr he owed to the bishops who at the papal bidding had excommunicated him, and whose goods had been confiscated for their pains. Three months later, at a Council called to Oxford, but of whose assembly there is no proof, the counties also through the sheriffs were for the first time summoned to send four discreet men to speak with the king concerning the business of the kingdom." The effect of these examples was not reassuring. Already, in 1207, John had violated the practice of his father and his brother by making no use of a representative local body for the assessment of the thirteenth exacted in that year.^ Magna Carta took no notice of the representative principle in its provisions for the grant of taxation, though it extended the system of election from the jury of presentment to the juries used in three of the possessory assizes,'' a concession which seems to have been withdrawn in the second re-issue of the Charter early in the following reign.'^ But these lapses from the principle of representation were only momentary. Recog- nition had been gained of the three ideas which culminated in the modern Parliament, namely, Representation, Election and Concentration in a central assembly. Stress of circumstances in the ensuing period caused the gradual and complete establishment of these three elements in the modern system of representative government. With T238 begin the schemes of baronial reform. For the ensuing twenty years these schemes may be said to be charac- terized by three features or, more correctly, the baronial demands took three forms. Following the example of earlier occasions (121 8, 1223, 1224) the barons sought from the king or his ministers (i) a reconfirmation of the Charters in return for a grant of money. In 1253 this was done with such solemnity that a sentence of excommunication was issued against all transgressors;*' while in 1254 the demand, coupled with the refusal of the bishops and barons to be responsible for the willingness of the smaller folk to contribute, caused the Queen and Earl Richard of Cornwall, regents during the king's THE LEGISLATURE I31 absence in Gascony, to repeat the experiment which had proved abortive in 12 13. The sheriffs were directed to send up to a Council at Westminster two knights chosen by the county, who should declare the amount of the aid which ^eir electors were willing to grant.' A more questionable demand was for (ii) the ^ •^- ^- 37^- election of the three great officers of state by the Commune Con- cilium. But this it was scarcely likely that the king would grant, and certainly not advisable that the barons should enjoy. The demand, however, was not made altogether in vain. In 1237 the 1237. barons rejected the indirect hold over the government which would have followed the control of public expenditure offered to them by Henry's minister, William of Raleigh. They either regarded it as a subtle attempt to raise money more regularly, or were too stupid to be contented with anything short of a definite placing of the Crown in commission. The immediate effect seems to have been that the Crown was ready to accede to their utmost desire; for in 1238 Henry was only prevented by the refusal of his brother Richard from agreeing to abide by the decisions of chosen ministers for general reforms. In 1244 the prelates and barons nominated a committee of twelve 1244. to place their demands before the king, chief among which was one for the appointment of ministers. As the struggle grew intense this demand became more frequent (1248, 1249, 1255) ; and, not satisfied with an attempt to monopolize the central administration, the barons aimed at securing the appoint- ment of the sheriffs, through whom the king was able to make his influence penetrate into distant parts of the country. The most significant and practical demand of the barons during these twenty years was for (iii) the regular summons to a 'Parliament.' The word itself seems to have been introduced in the course of the struggle, and the chronicler, Matthew Paris, is accredited with its first use in 1246 for a general assembly of the legislative body.^ The feeling seems 2 ^^ ^ ^28. to have been growing, that piecemeal representation of the Matt, nation in casual assemblies convoked only at the pleasure of ^^'■'^' '^9o- the king, was probably accountable for the weakness of the opposition to the Crown. The expression of this feeling at first took the form of refusal to act from want of complete powers. Thus in 1253 the clergy used the absence of the archbishops as an excuse for not deciding in an awkward 132 ENGLISH CONSTITUTIONAL HISTORY matter. Already in 1249, and again in 1255, the barons, for analogous reasons, assumed a similar passive attitude. Yet it was very slowly that the barons found their way to the right solution^ despite the example of the regents in 1254. For when, in 1258, the king was compelled by the difficulties Provisions arising out of his promises to the Pope, to put himself into of Oxford. |-]^g hands of the barons, there was no thought of the extension, so as to include a wider range of persons, of that oligarchical body which had already proved its incompetence to grapple with questions of government. At the first Parliament in that year, a committee of twenty-four, chosen equally from the Royal Council and the barons, drew up an elaborate scheme of provisional govern?/ient, which came into existence at a second meeting held at Oxford in June of the same year and known to subsequent ages as the Mad Parliament. Here a list of ^ S. C. grievances was presented by the barons,^ and the scheme 382-387. called the Provisions of Oxford - was ratified. By this, no less -g-_ ■ 5 than four committees were appointed, one of which, however, was merely to treat of a temporary money grant. Of the other three, the first was a committee of twenty-four chosen from either side by an elaborate process of double election, whose work should be the appointment of great officers of State and the redress of grievances. A standing Council of fifteen was further appointed for the king ; and finally, in order to lessen the troublesome duty of attendance in Parliament, a third committee of twelve was appointed who should meet the Council of fifteen thrice a year as representatives of the nation. It is not necessary to criticize the scheme at length. It would be hypercritical to note that the powers of the two permanent committees were not accurately defined, and that no provision was made for the filling of vacancies or for the cessation of the scheme. It is sufficient to point out that, while professing to leave to the king his authority constitu- tionally restrained, and pretending to represent the nation at large, in reality the scheme placed the executive in the hands of an oligarchy of barons in whose quarrels there was no mediating authority. It was to the interest of no one except the members of the several committees, that such a method of government should be retained ; and it was not long before their mutual jealousies brought it to an end. THE LEGISLATURE I 33 Meanwhile, we must look in another direction for the solution Simon de of the problem. It was perhaps the action of the regents in Montiort s '^ . . . ... . scheme ot summonmg representatives from the shire courts in 1254, govern- that emboldened a body, calling itself the Communions ment. Bacheleriae Ang/iae, i.e. the knights who found themselves by the action of the barons definitely shut out from the Commune Concilium, to address a remonstrance to Prince, or as con- 1250. temporaries would have called him, the Lord^ Edward in 1 Tout, October, i2t;c).- This had an immediate result in the Provisions Edward /, .0 . . — 12 of Westminster,'' by which remedies were promised for most of 2 a r the complaints mentioned in the petition of the previous year. Ann, Far more important is the fact that it was probably the initiative Burton. taken by the knights in this matter which, on the renewal of • 1 • 400-405. the quarrel in 1261, suggested to the barons the advisability of J261. summoning three knights from each shire south of the Trent to the autumn Parliament at St. Albans. The king made a similar bid for popular support by summoning the same three to Windsor;^ but there is no record that either Council was ^ S. C. 405. eveFheld. Three years later Simon de Montfort had won the battle of Lewes, and had taken the burden of government upon his shoulders. In June, 1264, he called together his first Par- 1264. liament, to which, acting on the precedent of 1254, he had sum- moned four elected knights as representatives of each shxxe? ^ Ibid. /^i2. They were not, however, given a voice in the formation of the scheme of govern7?iefit which followed. This was a matter for the initiated alone. Three electors were, according to one reading, to be chosen by the barons ; according to another explanation, self-appointed. These should receive authority from the king to choose nine councillors, of whom three should in turn be always at the Court. All business of State should be done by their advice, and disputes should be decided by a two-thirds majority of either the Council or the three electors ; and finally, provision was made for the filling up or the removal of members of the Council.'^ The exact effect of this constitu- "^ Jbid. 413. tion is a matter of considerable dispute. All writers compare it with the elaborate committees of 1258. On the one side Dr Pearson " and M. Bemont regard its tendency as more ' Hist, of oligarchical than that of the arrangements of six years before. ^"-^' "• ° ° •' 252. 'The constitution of 1258,' says M. Bemont, 'gave all the power to Parliament (i.e. the representatives of the baronial 134 ENGLISH CONSTITUTIONAL HISTORY 1 S. de Montfori, 217. - 5. C. H. § 177. •' .S'. de Montfori, 289-293. Simon de Montfort's Parlia- ment. 1265. 15. C. 415. ^S. de Montfort, 231. « //!i/^. 180. 7 Mid 'Ages, ii. 43 party); that of 1264 placed all the authority in the hands _pf three electors.'^ As against this view, Dr Stubbs and Mr. Prothero maintain that Simon's provision is a distinct de- velopment of the scheme of 1258. 'The provisions of 1258 restricted,' says the former, 'the constitution of 1264 extended the limits of parliament.' -. Mr. Prothero even holds that the three electors resembled the modern Prime Minister, because, once elected, they were dependent on the will of the Com- ?>iunitas, in which were included the knights of the shire.^ In January, 1265, Simon gathered his second Parliament. It was here that the great constitutional advance was made with which his name is especially connected ; for to this assembly were called nor only two knights from each shire, but also, practically for the first time, two citizens or burgesses from twenty-one cities or boroughs mentioned individually by name.^ It is for this reason that Simon de Montfort has hen styled the creator of the House of Commons. He is, however, scarcely entitled to the name. For, in the first place, a very cursory glance at its composition will show that the assembly was merely a parliamentary representation of Si mon's own supporters. Thus, of the barons, who as a body were un- favourable to his cause, only five earls and eighteen barons were summoned ; while of the clergy, who were his staunch supporters, there was a very full and disproportionate number. Again, with regard to Simon's own particular contribution to the making of the national assembly, the representation of the towns was avowedly due to their support of Simon ; and the writ for election was addressed to the mayor of an individual specified town, not to the sheriff for a general representation of all worthy towns in his shire. And, further, Simon's merit as a great constitution-maker disappears altogether in the serious doubt whether this Parliament of representatives was intended to be permanent. Indeed, M. Bemont is of opinion that its only object was to sanction the scheme of government established in the previous year, and he points out that, in the writs of summons for the following June, only prelates and greater barons are summoned and there is no mention of the commons.^ Thus, while denying to Simon de Monfort the proud title of ' creator of the House of Commons,' we need not . minimize his work by suggesting witli Pauli ^ or Hallam " that he THE LEGISLATURE 1 35 borrowed his ideas from Aragon, or with Mihiian ' that he was ' Lat. indebted to Frederick II's Sicilian Constitution, or with a later ^f''"''- ., , , ... . . Bk. X. cli. 3. writer- that he made use of his experience in Gascony. How- - , .• ever far we are prepared to go in opposition to his claims, we quary, may at least believe that his real merit lay in the fact that he June and was the clever adapter of existing materials ; and — even more "^' ^ ^" important — that, although a foreigner, he worked from thoroughly English bases. From their leading feature, the ensuing thirty years may 1265- 1295. be styled the period of attonpts at a gradual formation of a Natio7ial Council. Certainly the death of Simon at Evesham was'Totlavved by a pause : for the rest of Henry HEs reign nothing was done in the direction which the example of the Edward I's great leader seemed to have indicated. But his work had not ^''P^"- 1 111 ir 1- ^ f n , ■ , ments. gone by unheeded, and fortunately it was left for a king who was also a statesman to perfect it. In 1273, even before 1273. Edward's return from Palestine, his regents summoned to a convention for taking the oath of allegiance not only the prelates and barons, but also four knights from each shire and four citizens from each city.^ This may have been done =' S. C. 429. in order to ensure the support of the entire nation, doubly im- ^"Im- portant owing to the prolonged absence of an uncrowned king; j/J^ "' but whatever the reason, the imitation and elaboration of the assembly harmonized entirely with Edward's own designs. Of his first Parliament no writs of summons are extant : 1275. biat the preamble to its most important enactment describes it as made, not only by the usual classes of the barons, but also by ' the community of the realm thither summoned.'"' "* -tUd. 450. From this mode of expression Dr. Stubbs thinks it ' almost certain that some representatives of the commons must have been present.''' For the next twenty years Edward seems •'^ /i^^'t/- 449- to be conducting a series of experiments with the object of determining in what proportions the various classes, which the events of the last reign had stereotyped, would most suitably combine. Thus — to deal in detail with the most prominent instances — in 1283 he called two representative bodies. In January, acting on the analogy of the clerical Convocation, he called two provincial Councils at York and Northampton respectively. The magnates were absent with the king in Wales, and the Councils consisted solely of four knights from 136 ENGLISH CONSTITUTIONAL HISTORY each shire and two representatives from each city, borough and ^ S. C. 465. ' villa mercatoria ' summoned through the sheriff.^ To these were added members of the clergy ; for, the archbishops were directed to summon through the bishops the heads of the 2 Ibid. 466. various religious houses and proctors of the cathedral clergy. - -^ Judged by the latest standard these Councils were imperfect r bodies ; for, besides the absence of the barons, there were no representatives of the parochial clergy, and most important of all in the prospect of future imitation was the fact that it was not one national assembly. Later in the same year (September, 1283) was called one body known as the Parliament of Shrewsbury, or of Acton Burnell, to which, besides the barons, came two knights for each shire and two representatives from each of twenty-one cities and boroughs specified by name and summoned, therefore, not through the sheriff, but by writs addressed to their own mayors or bailiffs. The two meetings of January had been called to make a grant. This assembly was brought together chiefly to give national sanction to the condemnation of the Welsh Prince David. Consequently the clergy were entirely left out, and such legislation as there 3 jl^id^ was seems to have been submitted to the baronage alone.^ 467-468. In 1290, after the barons had passed the important statute Quia Emptores., they were reinforced by two or three knights from each shire for the purpose of a money grant ; but no * Ibid. representatives were called from the towns or the lower clergy.'^ 477-478- In 1294 the parliamentary representation of the clergy was completed ; for in September of that year the clergy were summoned, though separately, yet to one assembly embracing representatives from both provinces. Thus, besides the bishops and a large number of abbots, there came deans of cathedrals and archdeacons in person, and of cathedral chapters one, and of the parochial clergy two proctors from each diocese sum- moned through the bishops. The importance of this assembly lies in the acknowledgement which it carried with it of the * Ibid. 4S0. need of clerical consent by representatives to taxation.® In October of the same year came another maimed lay assembly, ^ Ibid. i,%\. the magnates and four knights from each shire;" but in 1295 for the first time all these various ingredients were added together in their completest form to make what has 1 been known to after-ages as the Model Parliament. To this / THE LKCILSLATURE 137 assembly came the archbishops and bishops, three heads of reHgious orders, sixty-seven abbots, seven earls, forty-one barons, two knights from each of thirty- seven shires and repre- sentatives from each of no cities and boroughs throughout the kingdom, a body of rather more than 400 persons.' ' .S'. C. But although it may be true that, starting from this date, 484-4^7- 'a perfect representation of the three Estates was secured, 1295-1334. and a Parliament constituted on the model of which every succeeding assembly bearing that name was formed,'^ it was ^ '^". C. 483. nearly forty years before the form was really complete. Change of Mr. Freeman has shown how purely accidental was the forma- Estates tion of the English Parliament into two chambers rather than Houses, into three or four.'' Edward I had in his mind an assembly of 3 E^sav^ three Estates. This seems to have been the common form 4th Series, of which variations are found in the development towards self- 442- government of nearly every European nation. ' An assembly of Estates,' says Ur. Stubbs, ' is an organized collection, made by representation or otherwise, of the several orders, states or conditions of men, who are recognized as possessing political power.'"' But in England the three theoretical Estates of^i". C. //. clergy, lords and commons never had a chance of combination. § '^5- The lower clergy persisted in their attitude of aloofness ; the j knights hovered between the barons and the burgesses. Itj took forty years for those concerned to discover that the clergy' V could well be left to their own devices, and that the real interest of the knights lay in union rather with the burgesses than with the barons. At first the various Estates — baronST^ knights, burgesses and lower clergy — when they came, sat each by itself, probably in different parts of Westminster Hall, and voted its money separately and in different proportions. But the terms of the grant were of most importance to the represented and the poorer Estates, who moreover had been called to Parliament solely for that purpose. It is not wonder- ful, then, that they soon acquired the privilege of settling the amount of money grants, and the lords acquiesced in their exercise of, this power, as did the king in the abstention of the clergy, because they perceived it was to their own advan- tage. That the separation of the Estates into the two bodies of lords and commons is not unconnected with the acquisi- tion of the monopoly in taxation by the latter, would appear 1^.8 ENGLISH CONSTITUTIONAL HISTORY ' Mid. --^fCi", iii. 38. 1334- -' Chap. X. Growth of Commune Concilium into House of Lords. Qualifica- tion of lay members. from the fact that, although Hallam is inclined to date such separation as early as 1315/ the first distinct record of a separate session is not found till 1332, while two years later the various proportional grants of the different Estates, which had settled into an uniform rate of one-fifteenth and one-tenth, became a fixed sum of close upon ^^40,000.- § 21. But for the present we must foUov/ the fortunes of the members of the old Commune Concilium. The organization of this body on a feudal model had, as we have seen, been sanctioned by Magna Carta for purposes of taxation. But this was the very duty for which Edward I had formed a Parliament of the three Estates. Meanwhile, the Commune Concilium had acquired a firmer hold on the regulation of every department of government ; for, the minority of Henry III had thrown the whole supervision of the administration into its hands, while the most prominent barons would necessarily be members of the Council of Regency. The magnates then, like the clergy, had a corporate existence in a recognised assembly with more or less definite rights, before Edward I placed at their side, and bade them share the most important of their powers with, the representatives of the commons. And not only was it unlikely that they would surrender this position without a struggle ; but in the end, although they had to share with the Commons the powers of legislation and general deliberation as well as the first won power of taxation, their descendant — the House of Lords— retains to this day the power of a Court of Justice, which it has never shared with the Commons, but which has descended to it from the days before Edward called the latter to the National Council. The immediate point, then, is the gradual transformation of the Commune Concilium into the House of Lords ; and we may leave to another chapter the history of the gradual growth of the powers of the House of Commons until the old constituents of the Commune Conciliutii had become the ' Other House,' or, to use the phraseology of modern political science, a Second Chamber. Jt may shortly be premised that the distinction between the Commune Con- cilium and the House of Lords is to be found in the gradual growth and ultimate triumph of the hereditary principle. The first point, then, which calls for notice is the means by which this hereditary character was generally established. We THE LEGISLATURE 139 have seen that it is idle to discuss the original qualification of the membership of the Curia Regis. The king summoned whom he would : except in the case of a very few men of political ambition, the desire would be rather to evade_ the summons than to demand it. But Magna Carta countenances the idea that in theory the king was to a certain extent bound by the acts of his tenants-in-chief of all grades, and the king himself frequently mentions the advice of his barones. Now the term Baron included all the higher ranks of the feudal hierarchy, all the majores barones, as well as many others of (i) Tenure less exalted rank ; so that we may accept the definition which by barony, makes it ' perfectly clear that until the end of the reign of Henry III, at any rate, a Baron was a person holding lands of the Crown and owing military service to the King.' ^ Not for i pike, a long time yet, apparently not even by the middle of the -^^'"^ ^/ fifteenth century, did the term Baron become a title of dignity. "^ ^' The earls and the holders of other titles as they arose, were in all documents accorded their special rank : the baron if he had been knighted, was designated as ' chivaler.' It would be true to describe him with the author just quoted as ' a person whose status . . . rendered him liable to military and parlia- mentary service.'- In course of time the liability, as far as'^/d/d. 95. parliamentary service went, became a privilege ; but until that period was nearly reached it is unprofitable, even if it were possible, to inquire ivhether tenure by barony of itself ever con- ferred a right to a writ of summons. Most of the barones would have asked whether their tenure did render them liable to the receipt of such a writ, and they caught at the consti- tutional arrangements sanctioned by the Charter, which after all may have been largely their own work, as affording them an excuse for staying away. But we need not underrate the effect of tenure by barony Permanent upon the development of the House of Lords. In several ^^[l^^^^ "/^j^^ directions and until quite recent days we can trace the lasting tenure, influence of rights and claims arising from the idea. A resolu- tion of the House of Lords in 1640, forbade the surrender ^ ^^^^^^^^ of a barony to the Crown ^ by grant, fine or any other con- Peerage, veyance, and in 1678 this was clenched by a decision in l;y ^- E- C. a particular case adverse to a surrender by the process of pj^^-^"^^"*" suffering a fine. The lord's right to prevent a surrender of 269-273. I40 ENGLISH CONSTITUTIONAL HISTORY ^ Pike, 272 '^ Complete Peerage, i. 392-393- Tike, 103-107. Their late survival. 3 Pike, 80-81. * Complete Peerage, i. 321. 1669. 5 Cf. Pike, 129-130. 1819. *■' Report, ii. 241. a dignity to the Crown has been questioned by a recent writer of authority,' but there is no doubt about the validity of another resolution passed in 1641 which forbade the trans- ference of any peerage from one person to another — a practice which had been occasionally allowed by the Crown. The only possible foundation for these practices of transference and surrender is to be sought in the continuance of the idea of barony by tenure. To the same influence must be attributed the power which the heiress of a barony possessed, o'i conveying to Jier husband, although a commoner, a right to the reception of a summons? And ' although some royal act of summons, or creation, or both, was necessary to complete the status, the usage was not materially broken down until the system of creation with limitation to heirs male was established.' Indeed, until an adverse decision in 1580, it was even held that a tenant by the curtesy of England, as this right was styled, could retain his seat after his wife's death and, consequently, to the exclusion of his eldest son. But it is only within recent memory that the parliamentary claims of barony by tenure have been definitely rejected. It was not altogether unknown as the basis of a claim to sit in the House of Lords ;^ but it seems to have been allowed as valid in the case of the earldom of Arundel alone, though it was also certainly implied in the descent of the famous Berkeley peerage during the Tudor period.'' The early opinions on the question were of doubtful meaning, based on expediency and not on law. Thus an Order in Council of 1669 definitely took this standpoint : even the judges who were consulted on the case of the barony of Fitzwalter thought that baronies by tenure ' were not fit to be revived,' because they ' had been discontinued many years.' ^ The conclusions of the Lords' Committee on the Dignity of ,a Peer early in this century were a mere re-echo of this opinion : it was only ' change of circumstances ' which had abrogated ' the right of any person to claim to be a lord of Parliament by reason of tenure.'® The matter was finally settled by the judgement of the House of Lords in the case of the Berkeley peerage in 1861, in which claims resting on two striking instances of a devolution of the title were peremptorily disallowed. There is no need to exaggerate the importance of this decision ; but it may be THE LK(;iSLATURE I4I pointed out that an extensive allowance of this claim, coupled as it must be with the freedom of alienation characteristic of the modern land laws, would enable a subject to transfer the peerage to a stranger, and to ' compel the unwilling sovereign to receive the homage of a peer so created.' ^ 1 Lord There is, then, no need to underrate or to ignore the in- Campbell, fluence of baronies by tenure. At the same time, the solution ^^J^^^n ' of the question of the general advance towards an hereditary i. 203-204. peerage must be sought in other directions. It has been seen that practically it was the receptioti of a special ivrit of summoiis (2) Receipt from the king which placed the recipient among the majores^}^'^'^^^'^^ , , . , ; , . , ^ , • , , Summons. oarones ; so that m this sense alone it can be truly said that ' that estate was a barony which entitled its owner to such special summons.' ^ But though the king could and, as we - s. C. H. have seen, did exercise a very wide discretion in the bestowal § '^9- of the wTit, there would be a certain number of barons, such as the earls, from whom it could not well be withheld, and a cer- tain number of great barons just below that rank, in whose minds one reception of the summons would easily raise pre- sumption of another. As a matter of fact, it seems that under Henry III the king's use of the writ did cause dissatisfaction ; for in 1255 the magnates refused to grant an aid, since all of their number had not been summoned in accordance w'ith the direction of the Charter. It may be, then, that Edward I was not so great an innovator as is commonly supposed. Dr. Stubbs regards the year 1295 — the date of the ' Model Parliament' — 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.^ This is probably too ^ S. C. H. absolute a statement, though we may be justified in fixing ' the ^ '^^ ' reign of Edward I as the time when the hereditary parliamentary baronage began, without rigidly ruling that the king could not after 1295 lawfully refuse a summons to a man who had been summoned already.''* What Edward I seems actually to have * Freeman, done was to select a small number who should constantly '^f^^'f' receive the special summons, and thus, as Dr. Stubbs points .C4. out, by implication to have put an end to tenure as the sole qualification for reception of a writ. But Edward probably took a further and more important step in the entire divorce of 142 ENGLISH CONSTITUTIONAL HISTORY tenure and summons. There is considerable evidence to show that out of even the diminished numbers whom he called to Parliament, some owed their seats solely to the reception of a special writ apart from all possible qualification of baronial tenure. Thus Thomas Furnival, who was proved in 1326 not to hold his lands on baronial tenure, was nevertheless summoned 1 But see by special writ from 1295 to 1332.^ It is because of these Pike, innovations t"hat Edzvard I has beeii called the creator of the ^^ ^ ' House of Lords, as much as he is generally acknowledged to be the creator of the House of Commons. As a matter of fact both titles are misleading. In Mr. Freeman's clear words, ' he did not create the first elements of either, which existed long before, nor did he give either its final shape, which neither took till afterwards ; but he established both in such a shape that all later changes may be fairly looked on as merely 2 Essays, changes in detail.' '^ It was the settlement of the hereditary, 4th Scr., Qf ^g j^^j._ Freeman would have us call it, successive character of the writs of summons, that brought to the front the question of the nature of this hereditary succession. A place in the House of Lords being hereditary, i.e. passing to a successor, who, on the death of the present recipient, was entitled to the writ? We have seen that the claim arising from a barony acquired by alienation and not by inheritance was not altogether unknown. But a statute of 1382, which, however, has been supposed to be merely declaratory of the existing custom, has been interpreted by a recent writer as determining that ' a writ of summons conferred a right to be summoned upon the heirs of the first recipient of the writ if only he had obeyed it and •■' Anson, i. taken his seat.''' On the other hand it has been held that this '92- legal doctrine did not come into existence until two centuries later ; that it grew out of prescriptive rights and struggles for precedence among those who were regularly summoned, and that the first case of its legal recognition was that of Thomas * Pike, Lord De la Warr in the reign of Elizabeth.^ In any case ii4-'29. jj^g doctrine was confirmed by two decisions of the House of Lords in the reign of Charles II, connected with the names of Clifton (1673) ^"d Freschville (1677). Kut what- ever the exact meaning of the statute of 1382, it did not determine who were the heirs. In discussions of the question, when it has arisen, contrary arguments have been adduced THE LEGISLATURE 1 43 from the legal analogy of succession to property in land. Chief Justice Coke in the seventeenth century called the right to summons a fee simple ; but it has lately been pointed out that it is rather like 'an estate tail created without words of limitation and incapable of being barred.' ^ The point is, > Anson, i. that the old baronies by writ were so free that they descended '99- ,, ,. , , , ■' , ,, . , . . bee also to all hneal, though apparently not collateral, heirs, and even, p[\^^^ ,24. as we have seen, to heiresses who could transmit to their husbands the presumptive right to the reception of a writ of summons. And so things might have continued but for the discovery (3) Letters of a new method of creation, fy letters patent, which limited P^"-*^"^- the hereditary succession of titles to a stricter course of descent, and ultimately established in the narrowest and most uncom- promising fashion the hereditary character of the House of Lords. Earls had been so created since the reign of Stephen-, "- Pike, 60. and the new grades of peerage, introduced by Edward III and his grandson respectively, of Duke (1373) and Marquess (1386), together with the slightly later Viscount, were from the very first subject to this method. The creation took place with ceremonies in Parliament, and the descent of the title was generally limited to the heirs male of the recipients. In 1387 the method was employed in the case of a simple baron whose status was for the first time exalted into a definite rank, and John de Beauchamp, Baron of Kidderminster, became an 1387. hereditary Lord of Parliament, ' not in virtue of his lands but of his dignity.'''' But it was only from the reign of Henry VI '' Pike, 109. that creation by patent gradually superseded the old writ of summons until, by the time of the Tudors, the use of the latter had altogether ceased as a means of calling new members to the House of Lords. There have been many conjectures as to the exact object of the introduction of this new method of creation. Mr. Freeman thinks ■* that ' one motive was to assert the king's ■* Essays, power of free summons in another shape, after baronies by 4ih Scr., writ had fully become hereditary,' since by the terms of the patent the grant could be limited to the lifetime of the recipient or to succession in any specified line of his descendants. From a slightly different point of view it has been regarded as dictated by the desire to limit the peerage in the direct 144 ENGLISH CONSTITUTIONAL HISTORY line of descent ; while from the side of the baronage it was encouraged as entirely and finally removing out of the power of the Crown the control of the issue of the summons to the hereditary successors of previous recipients. The real ad- vantage of the new process was that it simplified all questions relating to disputed titles, since they could mostly be solved by reference to the original patent ; while its most important result was that it completed the hereditary character of the House of Lords, defined its limits as an Estate of the realm, and exchanged the old claim of the barons to represent the Commune Concilium for the more modern i)osition of an ' Other House ' theoretically equal to the representative body in its powers, but with an inevitable tendency towards the legislative dependence of a Second Chamber. Life It has just been said that one of the advantages of creation peerages. ^^ patent has been thought to have been the power which it gave of restricting the rights of peerage to the shortest available time — the period of the life of the grantee. But Dr. Stubbs believes that ' it is not probable that the Crown ever con- templated the creation, by such single summons, of a barony for life only,' and he conclusively explains away the single or irregular appearance of a considerable number of persons who are recorded among the barons summoned to Parliament ^ S. C. H. from 1295 to 1485.' This seems sufificient refutation of the § 428, admissions of lawyers, the conclusions of the Lords' Committee and note on j g ^^ ^^ contention of Mr. Freeman, as to the undis- Prynne s - ' • , • rr^i • • , list. puted right of the Crown m this matter. ' The ancient right Cf. also q{ the Crown to create peers for life, never abolished, never Pike '^76 • • • • • ^ Eslavs ' seriously questioned,'- disappears into the limbo of historic 4th Ser., fancies when it is remembered that such questions could not 473- arise until the reception of a writ of summons had grown into a prescriptive right, and that, since that rather vague date, there is no authenticated instance of such a creation. The apparent :i For exceptions to this rule in the case of peers fall into two classes : ■' instances, they are either grants of higher rank in the peerage, such as ^f^ Complete ^y^^^ of the dukedom of Exeter to Thomas Beaufort in 1416, reerage, . . . . ^ ' viii. 94-95. or grants of baronies with an express provision that the holder should not sit in Parliament. Such were the creation of the baronies of Hay in 1606 and (perhaps) of Reede in 1644; and of course the limitation must have been expressed THE LEGISLATURE 1 45 in the accompanying patent. The creation of peeresses for Ufe under the later Stuart and the Hanoverian sovereigns need only be mentioned in order to omit no point in this particular subject.^ In the middle of the present century an attempt 1 for instances was made at the revival, as it was thought, of this ancient ^^^ Complete prerogative of the Crown. In 1856 Sir James Parke was by .74.475 patent created Lord Wensleydale for life, and a special clause jgrg^ was inserted entitling him to a writ of summons to the House of Lords. Now, it had been settled by the Lords in two cases under Charles II, that the reception of a writ of summons, if followed by the taking of the seat, constituted an hereditary peerage. It was for this reason that Lord Wensleydale, a sonless man, had been created by letters patent. But the Lords altogether refused to receive him. It was acknowledged that the Crown could create life peerages by patent : the com- paratively recent cases of Lords Hay and Reede, just noticed, seemed to leave no doubt in the matter ; but for four hundred years there was no instance of a new life peer in the House of Lords ; and if it were lawful to act upon precedents, doubtful at the best and drawn from early stages of the constitution, it would be as much within the competence of the Crown to go behind the Reform Bill and to revive the power undoubtedly once exercised, of issuing writs to unrepresented places, as to - Erskine, change the constitution of the House of Lords by the creation ^^y^ i-' of life peers who should have seats in that assembly.'-' Now it is necessary at this point to note that, from its earliest The existence and except for two short moments in that existence, Spiritual . Estate in the House of Lords has contained a number of members who padiament. do not owe their position to any hereditary right at all. Until the Reformation the House of Lords contained, in addition to the lay barons, two archbishops, nineteen bishops, a number of abbots, a few priors, and the heads of the religious military orders, namely, the Prior of the Hospital of St. John of Jerusalem in England and, until the dissolution of the Order, the Master of the Knights of the Temple. None of these could under any circumstances claim to sit in Parliament by virtue of hereditary succession. It is, however, necessary to incjuire whether they all owed their presence to a similar Qualifica- (lualification. Dr. Stubbs has taught us that although as ac°"-?^\'^^ counterpoise to the lay barons William I endowed the bishops Lords. L 146 ENGLISH CONSTITUTIONAL HISTORY with baronies, yet 'the bishops and abbots still attended in ^ S. C. H. virtue of their official wisdom,'''^ as they had attended in the 9 123. Witenagemot before the Norman Conquest. This position has, however, been emphatically denied. It is true that Glanvill, writing after the com])act of 1107 between Henry I and Anselm, allows that while bishops-elect before consecration are accustomed to do homage, yet an already consecrated bishop does not do homage for his barony to a new king, but - S. C. only takes an oath of fealty.- It is true also that the writ of 162-163. summons to a council required the presence of a bishop 'on his faith and love ' (fide et dilectione) instead of the 'faith and homage ' (fide et homagio) of the temporal baron. But the summons of the guardian of the spiritualities of a diocese during the vacancy of a see which has been quoted in favour of the official title of the bishop, is surely an argument in the contrary direction ; for neither the guardian of the spiritualities nor the vicar-general who might represent an absent bishop, were the bishop himself; while it has been pointed out that, from the time of Edward I, when the king required the bishops as individual advisers, he summoned them as individuals ; but when he required the assent of the clergy to taxation, the summons, with the addition of the ' praemunientes ' clause de- manding the presence of the lower cjergy, was issued alike to bishops, vicars-general and guardians of spiritualities. With regard to the abbots and priors Dr. Stubbs himself acknow- ledges that only 'those who held baronies were summoned,' and that consequently ' the question is more complicated than 2 S. C. H. that of the bishops.' ^ On the other hand, to a recent writer § 123, note. « it is quite clear that they were rightly summoned to Parliament only because they held by barony, and that if they did not hold by barony, they could claim to be excused as late as the ■* Pike, 156. reign of Edward III.'* The same writer goes on to show that during the fourteenth century, the bishops and abbots, who must be classed together and indeed were comprehen- sively described as ' praelati,' not only enjoyed several of the privileges of peerage but, on one remarkable occasion — the appeals in Parliament of the Lords Appellant in 1386 — claimed their right, as ' holding of the Lord the King by barony,' to take part \vith the other Peers of the Realm in all the business of Parliament and, since the Canons of the Church forbade THE LEGISLATURE I47 them to take part in the business before Parliament at that moment, they protested that they retired ' savingalways the right of our peerage.' But whatever their claims, the spiritual lords could not hold the same position as the lords temporal ; for, since a bishop could be translated from one see to another he could not even be said to hold his lands for life ; he could not of course transmit the lands, much less the dignity, to an heir, and his own punishment for treason or felony had no effect upon the succession to his possessions and office. But despite the entirely different position, it does not seem Reasons impossible that the spiritual lords should have obtained all the '^'"y '^"^ • •, , • 1 , r • 1 • I • spiritual privileges which the complete status of peerage carried with it, lords did had it not been for the Canons of the Church and their own not obtain obstinate adherence to clerical immunities. The former forbade J^r^^lf^^l 01 ijccrH^CB them to remain when questions of life or limb were under judgement : the latter made them refuse to claim trial by peers when they would have been entitled to it, on the principle that one secular court was as incompetent as another to try churchmen. Even while the prelates themselves were absent from trials of peers, there is evidence both in actual fact and in legal theory that they could be efficiently represented by a proctor acting on their behalf.^ Moreover, so long as he ^ Pike, sat in Parliament, the Prior of the Knights of St. John of ^°^"^^^- Jerusalem enjoyed every privilege of peerage ; while the inferior position in which the spiritual lords generally acquiesced is marked by two utterances from the early years of Henry VIII. The judges decided that a Parliament might be held without any spiritual lords at all ; " while, in letters patent issued to -^ pike, 327. the Abbot of Tavistock whose predecessors had once come to Parliament, the king declared the recipient, both in his own person and in that of his successors, to be a Lord of Parliament equally whether he attended or he availed himself of a special provision for occasional absence. And the claims of the spiritual lords to peerage, had they ever desired to repeat them, became more difficult v/ith each succeeding year. The one point common to the spiritual and temporal lords was tenure by barony, and this was rapidly giving way as a title to ' the status of peerage.' For once, then, the lawyers may be taken to have spoken historically when they asserted that the spiritual lords were Lords of Parliament by virtue not of their 148 ENGLISH CONSTITUTIONAL HISTORY ' Cf. Pike, 165-327. Position of the spiritual estate in Parliament since the Reforma- tion. - Oxford, Peter- borough, Chester, Gloucester Bristol. 1800-1869. Abstention of the nobility but 'of the ancient baronies annexed to their digni- ties.'^ Moreover, the Reformation changed the whole relative position of the spiritual and temporal members of the House of Lords. The desire of the abbots to escape attendance in Parliament had resulted in a decline of their numbers from about sixty under the first two Edwards to an average of twenty-seven under their successors. But even so the spiritual lords were as numerous as the temporal lords. The dissolution of the monasteries raised the question whether the summons to the abbots was, like that to the bishops, founded on their individual or their representative position, and the adoption of the latter alternative at once cut down the spiritual lords to half their previous number and, even apart from the new creations of temporal peers by the Tudor monarchs, left them in a hopeless minority in the House of Lords. Not that the numbers of the spiritual hierarchy remained stationary at the twenty-one archbishops and bishops who still continued to represent the spiritual Estate in Parliament. Henry VHI himself founded five new bishoprics'- out of the spoils of the monasteries. But despite the steady and, in course of time, enor- mous increase in population, and the grudging recognition given to any other spiritual organization outside the bounds of the national church, no other see was formed until that of Ripon in 1836. But in the Act providing for the foundation of the next new see — that of Manchester in 1847 — as well as in subsequent Acts of the same tenor, a clause is inserted to prohibit the increase of the number of lords spiritual. There are at present in England thirty-four bishops, besides a number of suffragan bishops, who are spiritually but not officially equal to diocesan bishops, and have therefore never been eligible for a seat. Of this number, the holders of the Sees of Canterbury, York, London, Durham and Winchester are, by virtue of their bishoprics, entitled at once to a writ of summons : the other twenty-nine supply the twenty-one remaining seats in order of seniority. To these were to be added from the Act of Union with Ireland to the disestablishment of the Irish Church, one archbishop and three bishops of the Irish Church, all those of each class sitting in rotation for a single session. But Edward I had desired that the spiritual Estate should have a more thorough parliamentary representation than it THE LEGISLATURE 1 49 could get by the presence merely of its ecclesiastical leaders, lower We have seen that in 1204 he called representatives of both clergy from -'. ' 1 1 r parliament, the cathedral and parochial clergy to a separate assembly of the spiritual Estate, and that in 1295 he placed them alongside of the two lay Estates. But the clergy, as an Estate, altogether refused to acquiesce in his plans. They already had their own assembly in Convocation, in which they had met for the last seventy years. Now, each archiepiscopal province had its own Convocation, which contained not only the ecclesiastical hierarchy, but also a full representation of the cathedral and parochial clergy. The system of representation in each was slightly different, and mutual jealousies prevented any amalgamation ; but it was in Convocation that the clergy were taxed by the Pope and that, with the papal sanction ' and of their own free will,' they voted their tenths to the king. For this double provincial representation of the clergy Edward wished to substitute one national representation in Parliament ; while his outlawry of the clergy in 1296 showed his determina- tion [that they should not escape their share of the national burdens. Thus the point for settlement was the assembly in which the clergy should vote their money. On the one hand, the king's desire to carry out his scheme led to the temporary insertion, in the wTits to the archbishops, of a special clause 1311-1340. beyond the usual ' praemunientes ' clause, enjoining on the fathers of the Church to compel the attendance of represen- tatives from their flocks. But, on the other hand, the clergy voted their grant of money as regularly and at the same time as the other Estates, and at the rate, namely one-tenth, which was paid by the wealthier portion of the community. Con- sequently, the king was not disposed to complain, and the clergy continued to vote their grant in Convocation until the reign of Charles II, when, by a mere verbal agreement 1664. between Lord Chancellor Clarendon and Archbishop Sheldon, the right of separate clerical taxation, which had become a mere form, was surrendered, and the clergy in return took their place among the constituencies of the House of Commons. But it must be carefully noticed that the clergy did not The lower stand altogether apart from Parliament. For, the higher clergy clergy in of course took their place as lords spiritual among the peers : ni'gnt. while the special clause added to the writs seems to have STAIE UGHi"iai. KMiU 1^0 ENGLISH CONSTITUTIONAL HISTORY 1321, 1322 (May). 1397- Results of their abstention. 1553- Growth of the idea of peerage. produced an occasional response. Two noteworthy instances occur as a result of Edward II's bid for popular favour against his cousin, Thomas of Lancaster, and the baronage. Under Richard II, again, there are proofs that clerical proctors occa- sionally attended the Commons. Such at least was the position of Sir Thomas Percy in the Parliament of September, 1397, and such is probably the explanation of the presence of Sir Thomas Haxey in the January Parliament of the same year. These instances are, after all, but a slight qualification of the general attitude of abstention from Parliament on the part of the spiritual Estate. And this abstention had im- portant results. For in the first place, as early as the reign of Edward III and onwards to the Reformation, frequent attacks were made upon the Church in the Commons, which their presence would undoubtedly have averted or mollified. Again, under Richard II, in acknowledgement of the attitude which they had taken up, the form of summons to the clergy through the archbishops was slightly changed. Hitherto they had been called like the Commons, ' ad faciendum et consen- tiendum.' Since 1340 there had been temporary alterations, but the form, which has been continued to the present day, became fixed to ' ad consentiendum ' alone — a function which could be adequately discharged by absence. Meanwhile, the clergy had lost the legal right to representation among the Commons ; for one of the earliest recorded cases of interference on the part of the Commons in the election to membership of their body, is that of Alexander Nowell, of whom a Committee of the Commons reported that, being a prebendary of West- minster, and so a voter for Convocation, he could not be a member of that House. § 22. We have now examined the qualifications for members of the baronial estate until the earlier methods were absorbed in the general method of creation by letters patent accompanied by a writ of summons. The hereditary lay members of the House of Lords owe their seats to this double qualification. A writ, once complied with, of itself creates an hereditary title ; the issue of letters patent alone does not entitle to a seat within the House : for infant peers or peeresses in their own right, and even dowager peeresses so long as they remain widows, have all the privileges of their order apart from any THE LEGISLATURE 151 question of a scat in the House of Lords. Thus there may be peers who are not Lords of Parliament, and it has been shown that there are Lords of Parliament who are not peers. But this distinction was the result of a gradual development. In tracing this development it will be necessary first to mark the chief steps in the growth of the idea of peerage among the lay barons, and then to show the means by which the idea was enforced. Several passages of the Leges Henrici Primi ' show us \e.g. that judgement by a man's peers or legal equals was an old ^^^^' ^ established principle of English law. Thus a baron would be Cf. also judged by other barones and not by sub-vassals. But as the ^^S- . Hen xxxii. administration of the law fell more into the hands of profes- xxxiii, sional judges, many of whom were not of baronial rank, the barons demanded a more explicit statement of the principle, and obtained it in the celebrated clause of Magna Carta,- " -S", C. 301. which forbids a free man to be molested ' nisi per legale judi- ^ ^^' cium parium suorum vel per legem terrae.' That this had nothing to do, as is commonly supposed, with trial by jury will be abundantly clear from the reflection that the business of the jury is not and never has been to judge, but to find a verdict. In the expression 'judicium parium' the barons were practically objecting to judgement by the king's judges and amercement by the barons of the Exchequer. The same spirit is visible in the demand of the barons in 1233, that Richard, the Earl Marshal, who had been declared a traitor by an assembly of the king's partisans and officials, should have the judgement of his peers, to which Peter des Roches responded not so much 'contemptuously and with a perverse misinterpretation of the English law,'^ as in allusion to the '' -5". C. H. practice of the royal court, that in England there were no peers ^ '^■^' in the French sense and that the king's justices were the peers of any man. 'The very title of the "barons "of the Exchequer,' says a writer of authority,^ 'forbids us to treat •*/". awof yl/. this as mere insolence.' But the barons were striving after '• 393- more than they were ever destined to get. So long as the court held ' coram rege ' was not a separate Court of King's Bench, but merely a professional committee, which could at any moment be swollen into a body co-extensive with the Commune Concilium, no baron could well take exception to 152 ENGLISH CONSTITUTIONAL HISTORY its judgements : but the Exchequer was growing into a law- court and its barons into professional lawyers ; and, although this did not come about until long after Magna Carta, yet we may acquiesce in the opinion that the judicium parium ' expresses a claim by the barons for a tribunal of men of baronial rank which shall try even the civil causes in which ^P.aiidM. barons are concerned.'^ On this point the king never gave ^' J52, ^vay, and, although in a few minor points of procedure the barons were accorded certain privileges, their civil rights like those of the ordinary freeman were subject to the decisions of royal judges. But in all charges which could be prosecuted by appeal — treason or felony — and which consequently in- volved the forfeiture or escheat of land, the barons could with reason demand judgement of their peers. Bracton himself tentatively suggests that since, in cases of treason, judgement by the king or his justices would make the Crown both prose- cutor and judge, the cause should be judged by the peers of 2 119- the accused baron.- It has been pointed out that we must "9 b> not confuse this judgement by peers with the trial of a later quoted by ^ ^ ;. ° , \F . , , • , Pike, 173. date; for, accordmg to the mediaeval method, judgement pre- ceded trial and the trial itself in cases of treason consisted of ^ Pike, 174. the ordeal of duellum or battle.^ Appeal and the resulting battle continued to be lawful modes of judicial procedure until 1819; but appeals in Parliament were abolished in the first year of Henry IV, probably in consequence of the abuse to which they had been put in the quarrels of his predecessor's reign. But by that time the term Peers, arrogated to their own class by the barons, was obtaining an increasingly exclusive 1322. meaning. Thus in 1322 it was 'the Peers of the Land, Earls and Barons ' by whose judgement the Despencers were 1330. to be banished, and in 1330 Mortimer was adjudged by 'the Earls and Barons as Peers and Judges of Parliament ' on the mere notoriety of his misdeeds, to die the death of a traitor. . At the same time the Peers took occasion to protest that they were not bound to sit in judgement upon ' others than their 1341. equals.' Again, in 1341 a committee of Peers, Bishops and ' Sages of the Law ' was appointed (not, as is usually asserted, in in Pike^ ^' ^ Connection with the quarrel between Archbishop Stratford and 186-195. ^^"'^ king'*) to consider the whole question of judgement by THE LEGISLATURE I 53 Peers. The report was to the effect that ' Peers of the Realm ought not to be arraigned or brought to judgement but in Parhament and by their Peers,' and desjiite the dissent of the legal members of the committee it was embodied in a statute. The Act, however, was annulled by the king and 'Council, and shortly after repealed by a more subservient Parliament. Thus not only was nothing settled with regard to judgement by Peers, but in 1387 the Lords seemed to abandon the position 1387. taken up in 1330, since they claimed as an ancient privilege for the Lords of Parliament the right of judging, with the king's assent, crimes against the State in the person of Peers of the Realm or of others. They proceeded to carry this into effect when they overruled the decision of the Judges as to the illegality of the appeals of the Lords Appellant against five advisers of Richard II, of whom two were commoners. This revocation of their narrow judicial claims did not carry any further conse- quences with it ; for with the introduction of the method of impeachment by the Commons, the abolition of appeals in ParJiament, and the institution of the Court of the Lord High Steward, the judgement of the Peers became a trial in the ^ Pike, modern sense, and provision was made for the conviction of chap. x. all State offenders as well as of the Peers themselves.^ ^ But the right of trial by peers was a symptom rather than The doc- a cause of the establishment of the status of peerage. For the ^""^ "f r 1 7 • ennobled cause we must look rather to the development of the doctrine of \,\qq^_ etuiobkd blood stigmatized by one great writer as ' historically a mere absurdity,' ^ but pronounced by another to be not only - S. C. H. ' no absurdity at all, but one which is perfectly intelligible, f-r -^^i "°''^' perfectly consistent with itself at all points, and as scientific as Freeman, anything to be found in mediteval or even modern literature. ■' Essays, For it was the outcome of that connection between tenure of ^g ^^"' land and political or official privilege which was of the •' Pike, essence of feudalism. Thus until the reign of Henry VIII the ^4i- tenant in fee simple transmitted to his descendants through his blood 'a capacity of inheritance' which he could only destroy by conveying away the land in his own lifetime and thus injuring himself as well as his heirs. As a natural result, a conviction for felony or treason corrupted the blood of the offender, and not only caused forfeiture of any lands that he had, but also rendered him and consequently his heirs VIII. s. 5- 154 ENGLISH CONSTITUTIONAL HISTORY incapable of inheriting any lands to which they might have a title. But however consistent or scientific the doctrine may have been in its origin, in course of time it became as irrational as feudalism itself. For, the breach between tenure of land and political duty soon began. The statute De 1285. Donis which permitted entail of lands, left the tenant in tail a mere tenant for life, whose treason could not affect the title ^^^}^^^- of his heirs; and, although an Act of Henry VIII subjected " estates tail like other estates to forfeiture for high treason, yet practically by that time the House of Lords was formed, and the coup de grace seemed to be given to the old claims of the 32 Hen. blood heirs by another Act of the same reign which endowed Mil. c. I. ^j^g tenant in fee simple with the power within certain limits of disposing of his lands by will. Moreover, dignities could be entailed as well as and apart from lands, though this was a prerogative of the Crown ; and, as in the case of lands after the Act of Henry VIII cited above, while attainder for felony only affected the blood of the individual, a conviction for treason corrupted the blood of the whole family of the offender and deprived him and his heirs of all possession and claims whether of lands or dignities, and on whatever tenure they were held. But until the Restoration it was still possible to maintain in theory that there was a connection between tenure of land and political duty and privilege as expressed by membership of the House of Lords. When, however, tenure by military service was abolished, the two qualifications even in theory parted company. But meanwhile the doctrine of ennobled blood had become so firmly engrafted in the idea of peerage that not only did it outlast the abolition of the feudal tenure to which it owed its birth, but in the years immediately following the Restoration the circumstances under which it could be claimed were still further defined by decisions of the House of Lords. We have seen that to the original method of special summons from the Crown was added, in process of time, the creation of new titles by letters patent. Since this double qualification became common, the House of Lords has by a series of decisions on disputed claims to membership of the House, gradually concentrated the claims of privilege of peerage in the hands of its lay and hereditary members. Although at moments these decisions seem to aim at the THE LEGISLATURE 155 limitation of the royal prerogative in the creation of peers, their real object was to assert for the existing members of the House the right analogous to that exercised by the Commons as judges in the validity of elections of members of their own assembly. Thus the House of Lords has at various times laid it down, on the one side, that a documentary record of com- pliance with a writ of summons constitutes an hereditary peerage; while, on the other side, a peerage cannot be alienated or surrendered to the Crown except by forfeiture for treason ; and, going a step further, that the mere issue of letters patent does not confer a title to a seat in the House. But there was one important class of members whose title Its effect on to a seat was untouched by any of these decisions. The the status r 1 .1-1 11-1 T • 1 1 of the spin- presence of the archbishops and bishops and, in a less complete tual lords sense, of the abbots was coeval with the very existence of the in Parlia- assembly to which they belonged. But the growth of the "^^"^^^ hereditary principle could not affect them directly ; and, so long as they formed the majority of the House, the doctrine of ennobled blood could not in any comprehensive sense become a basis for claims of peerage. But we have seen that their privileges as churchmen were so much more present to the minds of the ecclesiastical members than their rights as peers, that they ceased to urge these latter claims at all. And when the Reformation left the spiritual lords in a hopeless and constantly increasing minority in the House, the lay lords used their advantage of numbers to pass a resolution in 1592 simply 1592. denying to the bishops the status of peerage. But this did not prevent the appointment of a committee in 1661, on the 1661. restoration of the bishops to the House of Lords ' to consider of an order in the standing order of this House which mentions the lords, the bishops, to be only Lords of Parliament and not peers, whereas several Acts of Parliament mention them to be peers.' The decision of the Committee does not appear; but the bishops had long ago missed their chance. The chief privilege which they had lost was that of trial by the House of Lords. Yet no one questioned their right to take part in a vote on a bill of attainder, while among the valid Constitu- tions of Clarendon was one which relaxed the Canon law in allowing them to share in all judicial proceedings up to 1 ^- ^j j,g a point which might involve the decision of a mortal sentence.' § n. 156 ENGLISH CONSTITUTIONAL HISTORY But the lay lords can perhaps scarcely be blamed for carrying the now firmly established doctrine of ennobled blood to a logical conclusion when, in the impeachment of Danby in 1679. 1679, they tried to prevent the bishops from taking part even in the preliminary stages of the trial. Effect of The resolutions by which the House of Lords defined the the Unions status of peerage were by no means adequate to the conditions and Ireland ^^ ^^^ ^^^^ after the successive unions of the Parliaments of on the Scotland (1707) and of Ireland (1800) with the English House of Parliament. The conditions of the two cases, so far as they affected their own peerages, were slightly different. The Scotch peers meet in obedience to a proclamation and elect sixteen representatives of their number, who receive no special summons, but whose election is certified by a return made by the responsible ofificial to the House of Lords : to the Irish peers, on the other hand, on their own applica- tion are sent voting papers which they fill up in presence of certain specified local officials, for the election of twenty- eight representatives. Again, the Scotch peers are elected afresh for each successive Parliament, while the Irish peers hold their seats for life. Further, since the Scotch Church was Presbyterian no question arose of representation in the House of Lords : but the Irish Union amalgamated the Churches as well as the Parliaments, and provided that of the four Irish archbishops one, and of the eighteen bishops three, should sit in the House of Lords, not by election but by rotation of sessions, that is, each for a single session according to a definitely prescribed order. Finally, while no provision was made for the necessary retention or extension of the Scotch peerage or for the participation in political life of those peers who were not of the sixteen ; in the case of Irish peers the Crown was allowed to create one new peer for every three peerages that became extinct until the number should be reduced to 100, when each extinction of an old title might be supplied by a new creation. Moreover, Irish peers other than the representative peers were allowed to be elected as members of the House of Commons for any constituency of Great Britain, the only disability being that for the time during which any Irish peer so served, his rights and privileges of peerage were entirely in abeyance. Nor was this all. The THE LEGISLATURE I 57 peerage of Ireland was to be kept at the number of loo 'over and above the number of Irish peers who might be entitled, by descent or creation, to an hereditary seat in the House of Lords of the United Kingdom.' ^ Such a provision was only i pjke, possible because, during the century which had elapsed since 3^6. the Union with Scotland, a number of questions affecting the non-representative peers of the incorporated country had been gradually settled. Thus the great disproportion between the number of representative peers and the general body of the Scotch peerage was reduced by the admission of Scotch peers to the peerage of the United Kingdom of Great Britain. For some time the House of Lords offered a strenuous opposition which was met by the elevation of the eldest sons of the Scotch peers to the English peerage, who, in the course of events, succeeded to the Scotch titles of their fathers, but did not thereby vacate their seats in the House of Lords. Finally, 1782. in 1782 the Lords acquiesced in the unanimous opinion of the Judges that the promotion of Scotch peers to the peerage of Great Britain was in no way a contravention of the Act of Union, and all opposition to such creations was withdrawn. Two lesser questions concerned the relations of such peers to the representative peers of Scotland, and it was decided successively, — in 1786, that Scotch representative peers when 1786. raised to the English peerage cease to sit as representatives ; and in 1793, that such peers may nevertheless continue to vote 1793. in the election of the representative peers. The only change in the arrangements of the Irish Union has been the dis- appearance from the House of Lords of the representative spiritual lords in consequence of the disestablishment of the Irish Church in 1869. In conclusion of this point, it is 1869. important to note the difference in the probable fate of the Scotch and Irish peerages ; for while the latter must of necessity remain at 100, the former will become gradually extinct or all but its representative members will sit by English titles until the sixteen Scotch representatives, by self- election, if not by actual creation, become hereditary peers of , ^ ■' '■ Increase Parliament. of the It is interesting, and even not without historical importance, numbers to note the numbers of the house of Lords at various periods. ^^^,5^ ^f To Edward I's Model Parliament of 1295 there came nine Lords. 158 ENGLISH CONSTITUTIONAL HISTORY earls and forty-one barons, two archbishops, eighteen bishops, sixty-seven abbots, the Prior of the Hospital of St John of Jerusalem, and the Masters of the Knights of the Temple and of the Order of Sempringham. Of this number the arch- bishops and bishops and the Prior of the Knights Hospitallers were alone permanent. As many as 120 abbots and forty priors were summoned at various times, but many of them only appeared once, and under Edward HI the normal number sank to twenty-five abbots and a few priors — all generally from the same houses. Yet even so, until the Reformation the number of the prelates was almost invariably slightly in excess of that of the lay barons. At times, under the three Edwards, more than 100 earls and barons are summoned, but their numbers tend to decrease until, under the Lancastrians even with the addition of the holders of the new titles of Duke and Marquis, the lay baronage seldom counts more than fifty members, of whom the simple barons would form a very large proportion. Under Henry VHI not only did the abbots and priors disappear, but the majority in which the lay baronage was now left, was increased by some twenty new creations ; and the growing importance of the status of peerage was marked by an Act regulating the precedence of officers of state and members of the House of Lords. James I began a system of indiscriminate creation of peers, and is reckoned to have added as many as fifty-four new members to the House of Lords, of whom many obtained their titles in return for substantial gifts of money to the Crown. Until the Restoration all peers were in theory tenants-in-chief by knight service of the Crown, The burdens involved in the tenure had long become a mere source of revenue to the king, but their abolition altered the whole character of the peerage, and would be considered by some writers to have done away with any claim of the spiritual lords to a seal in Parliament. Henceforth a peerage became even in theory what perhaps it had been for some time in fact, the reward of personal or political service ; while the pre- dominance of the House of Commons after the Revolution brought out the importance of the royal prerogative of creating peers, in producing what may be called a readjustment of the Cf. Bage- mechanism of the constitution.' The result has been an hot, Eng. . . Const. 2.2.^). enormous increase in the numbers of the House of Lords. THE LEGISLATURE I 59 The 139 who were summoned to the Restoration J-'arHament in 1 66 1 had, by the accession of George I, risen to 168. This gives, however, but a faint idea of the number of peers actually created. Thus the first four Stuart sovereigns called nearly 200 new members to the House of Lords ; but since 100 titles in the interval became extinct, their actual addition to the peerage only amounted to 100 members. But it was during the reign of George III, and especially during the administra- tion of the younger Pitt, that the House of Lords was entirely transformed in numbers and character. George IH was responsible for 388 new titles, of which 128 were new creations ; and of the 388, 140 had been due to Pitt's initiative. Since the Revolution the House of Lords had been regarded as the stronghold of the Whigs, whose political theory opposed to the royal prerogative the divine right of a land-owning oligarchy. Pitt nominated for the honour representatives of all forms of wealth alike — a policy which has been followed by subsequent ministers and has permanently allied the House of Lords with the conservative classes of the country. Finally, by the middle of the nineteenth century the hereditary peers of the United Kingdom had risen to a few short of 400, while at the beginning of the twentieth century their numbers stand at about 500. When to these are added the archbishops and bishops, the re- presentative peers of Scotland and Ireland and the few law lords, the present membership of the House of Lords reaches to about 580. _ This vast increase in membership has almost of necessity Alterations resulted in a weakening of the sense of political responsibility '" ^'^^ in individual members of the House of Lords; while the Lq^^'J^J^ completion of the representative character of the House of Commons has made the body of the electorate increasingly impatient of any check by the hereditary House. Those who do not believe in constitutional cataclysms cling to the neces- sity of a second chamber. If they are political philosophers, they sketch out an ideal which would create a house of pro- fessional and experienced experts, who would prove a far more formidable obstacle to the ' will of the people ' than the present hereditary body : if they are practical statesmen, they limit their efforts to proposing modifications of and slight additions to the materials as they already exist. The House of Lords, l6o ENGLISH CONSTITUTIONAL HISTORY as we knoAv it, seems, in comparison with the reformed House of Commons, so stable a body that it is difficult to realize that, in ages before our own, modifications in its constituent elements were both carried out and proposed. The changes actually made in its membership concerned the spiritual lords, Thus, at the Reformation the abbots and priors were excluded, while for two short moments in the seventeenth century — from 1642-1649. the Exclusion Bill of 1642 to the abolition of the House of Lords in 1649, and again from the meeting of Charles H's. first Parlia- 1660- 1661. ment in 1660 to the definite Act of 166 1, by which the Exclusion Bill was rescinded — the bishops ceased to be members of the House of Lords. A much longer though equally temporary exclusion from the House was suffered by the Roman Catholic 5 Eliz. c. I. peers. When Elizabeth's oath of supremacy was made com- sec. 13. pulsory on all members of the House of Commons, 'any 1562. temporal person of or above the degree of baron of this realm ' was specially exempted, ' forasmuch as the Queen's Majesty is otherwise sufficiently assured of the faith and loyalty of the ^ Prothero, temporal lords of Her Highness' Court of Parliament.'^ But in 41. § 14. 1678, in the excitement of the Popish Plot, an Act was passed 3oChas. II. ^vl^ich extended the requirement of a declaration against Stat 2 . . . Transubstantiation to members of both Houses of Parliament. This caused the exclusion of eighteen Roman Catholic peers. The Act gained the assent of the king as a temporary measure, but it remained on the statute book for a century 31 Geo. III. and a half. In 1791 Catholic peers were restored to their c- 32- privilege of hereditary councillors of the Crown, but it was not until 1829 that the efforts of Canning and others obtained the 10. Geo. IV. repeal of the Test Act, which enabled Catholic peers once c. 7. sec. 2. more to take their seats in the House of Lords. Among the attempts to alter the cha?-acter of the House of Lords the first place in historical importance is taken by the 1719. Peerage Bill of 17 19. The jealousy shown by the Whig majority in the House of Lords of any extension of member- ship of the House, appeared first in its endeavour to prevent the admission of Scotch peers to the peerage of Great Britain, which would qualify them for an hereditary seat in the House. But a far greater danger to the Whig majority was the royal prerogative of creation of peers, which had been used in 17 11 to add twelve peers at one stroke to the House, for the purpose THE LEGISLATURE l6l of carrying through the peace with France. On the accession of George I the Whigs recovered their ascendency, and in order to secure it they proposed that, with the exception of members of the royal family and the case of an extinct peerage, the i)eerage of Great Britain should never be increased by more than six beyond the number at which it then stood. This barefaced attempt to turn the House of Lords into an indestructible Whig oligarchy was defeated in the House of Commons chiefly by the eloquence of Sir Robert Walpole. Modern ])olitics are familiar with schemes for the reconstruction of the House of Lords : but apart from the attempts to exclude the spiritual lords, ^ all of them have for their object the ' Erskine improvement of its efficiency as a legislative chamber.- It is, pf^' ^,^02°°' no doubt, peculiarly exasperating to the political party which 2 pji^'g claims only a small minority of supporters in the House of 383-386, Lords, that measures on which the House of Commons has spent the better part of a session, should often be thrown out by the vote of a number of irresponsible persons who at no other time evince any interest in public affairs. But it may be doubted whether an improved legislative second chamber would not, from its very strength, raise more formidable questions of practical politics than it had helped to solve. One thing, however, it might do. It might open to the young " Cf. Pike, and ambitious peers a sufficiently attractive field of labour in ^''7- . i\lso CCISCS the public service to mitigate their loudly expressed desires to of Lords shake off their disabilities and to become eligible for member- Coleridge ship of the House of Commons.^ hlmT^' § 23. The judicial functions of the House of Lords originated in the confusion which we have seen originally to have existed between the ' King-in-his-Council ' and the ' King-in-his-Council- in-Parliament.' It was in this indeterminate body of Councillors and Judges that the King exercised both an original juris- diction, i. e. in the first instance, in criminal charges against ^f "he"^ '"" great offenders who were too powerful to be dealt with by House of the courts of the sheriff or of the justices in eyre ; and an Lords, equitable jurisdiction in civil cases for which the Courts of Common law would find no remedy. Here, too, he heard cases which were brought up from the lower courts on writ of error, or in which petitions had been presented to him against the judgements of inferior courts. But Parliament and Council M 1 62 ENGLISH CONSTITUTIONAL HISTORY finally fell apart in the reign of Richard II ; and while Parlia- ment kept a large part of the jurisdiction which it had hitherto exercised, its separation from the Council could not but affect it in certain particulars. Parliament, however, in the judicial sense, had a limited meaning ; for, the term was applied only to the Lords of Parliament, the representatives of the old Com- mune Concilium which grew into the Hcfuse of Lords. Nor was this all ; for, the judges who had been members of the ' King-in-his-Council-in-Parliament,' were not members of the Parliament of the three estates ; but they were none the less required by writs of attendance to be present and give advice when wanted. The bishops, too^ owing to the Canon law which forbade them to take part in issues of life and death, were more and more shut out from a share in this important and peculiar function of the Upper Chamber. Nor did the Commons ever seriously attempt to share or even to rival the judicial functions of the Lords. In fact, at a very early period of their career they definitely repudiated for themselves the 1399. exercise of any such powers. In the first Parliament of Henry IV the condemnation of Richard II's advisers by the Lords was followed by a protest of the Commons to the effect that 'no record may be made in Parliament against the Commons, that they are or will be parties to any judgements given or to be given hereafter in Parliament.' To this it was answered that the king and the Lords have of all time had, ' S. C. H. and shall of right have, the judgements in Parliament. ^ § 303- The jurisdiction, then, left to the House of Lords in its (i) Original separation from the Council may be distinguished as original jurisdic- and appellate. The chief original jurisdiction was in connection '°"" with the practice of Impeachment. There were two methods by which, in the thirteenth century, persons could be charged with treason — by an appeal which would be decided by battle, or by an indictment or imi)eachment (the two words were at first indistinguishable), the issue of which would be submitted to the verdict of a jury. Early An appeal of treason against a baron or a minister would of impeach- necessity be made before the ' King-in-his-Council-in-Parliament,' until the use to which such appeals had been put in the late Ed TTT reign caused their abolition by the first Parliament of Henry IV. c. 2, " But, meanwhile, treason had for the first time been defined by THE LEGISLATURE 1 63 Statute ; Parliament and Council had fallen apart ; the Lords of Parliament had reduced the judges to the position of '352. assessors, and had asserted for members of their body the privilege of trial by their peers ; while the Commons, through the medium of taxation and petitions, were acquiring a strong corporate feeling. It was perhaps as a result of this feeling that in 1376 the Commons of the Good Parliament impeached '376. Richard Lyons and Lord Latimer for malversation before the Lords. Ten years later they used the same method of 1386. accusation against the Chancellor, Michael de la Pole, Earl of Suffolk, while in 1397 they so far seem to have formulated the procedure in such cases as to protest ' before the king in full Parliament that they intended by his leave to accuse and impeach any person or persons, as often as seemed to them good in the Parliament then sitting,' ^ and this protest was at ' -5". C. H. their request entered as of record on the Rolls of Parliament. ^ This method of attack, then, as developed by the Commons, was aimed against all offenders in high place, whatever their social rank. These would not necessarily be peers in the sense of Lords of Parliament ; and the Lords at the outset very nearly defeated the object of the Commons. For, not content with claiming t\\di\. Judiciufn parium which was claimed by every Englishman and was especially secured to them by Magna Carta, at an early stage in their judicial work they ^?>2>^- solemnly declared that the peers were not bound or charged to render judgement upon others than peers.- In 1387, how- ' -^'^''^■ ever, they claimed for the Lords of Parliament the privilege '^ of judging, with the king's consent, in the case of any very high crime touching the king's person and the state of all his realm, perpetrated by Peers of the Realm with others. It was in accordance with this claim that they were ready to impeach Richard IPs favourite. Sir Nicholas Brembre, if the Lords Appellant had not already made their appeal against him^ and that they actually impeached some of the royal Judges.'* ^ Pike, But the methods of trial of peers were as yet by no 200-202. means settled. The abolition of appeal in Parliament only applied to charges of high treason : until 1819 a peer could be appealed of murder in an inferior court, where he would be tried without any reference to privileges of peerage.^ At the ^ Jbid. 217. same time an indictment for high treason in an inferior court 164 ENGLISH CONSTITUTIONAL HISTORY would be removed into Parliament ; and here, without any initiative of the Commons, the effect of the old appeal was revived in the power of the Lords themselves to declare and adjudge as traitors members of their own body or others who Attainder, were threatening to disturb the public peace. Such a declara- tion, when it obtained the sanction of the other estates of the realm, became an Act of Attainder, an act of the legislature pronouncing condemnation without any form of trial. This was a most useful weapon when evidence was defective or rapid action became necessary. Thus, while impeachment 1450. was revived for the punishment of Michael de la Pole's grandson, William Duke of Suffolk ; as soon as the Wars of the Roses begin, the victorious side employs the subservient Parliament to pass Acts of Attainder against the leaders of the other side. In 1459 the Duke of York had been driven to take refuge in Ireland ; a House of Commons was assembled on the nomination of the Lancastrian leaders, and through it was passed an Act of Attainder against the heads of the Yorkist party, based on elaborate charges against their recent conduct. In 1 46 1 came the turn of the Yorkists, and Edward IV's first Parliament passed an Act of Attainder against Henry VI, Queen Margaret and a number of noblemen and prominent commoners of the Lancastrian party. But it was not only at moments of great political excitement that Acts of Attainder were found convenient. The Tudor kings habitually used their subservient Parliaments to destroy political or dynastic opponents by this means. With the revival of the power of Parliament under the Stuarts impeachments were renewed. But here some discrimination is necessary. The earliest cases usually cited are those of Sir Giles Mompesson, the monopolist, and the Lord Chancellor, Francis Bacon, Viscount St. Albans. But in both instances, although the Commons nominally conducted the case, the real accusers were private persons. On the other hand, it was the Commons themselves who impeached Cranfield, Lord Middlesex, although they were the unconscious tools of a political party; and 1626. George Villiers, Duke of Buckingham. In fact, throughout the seventeenth century impeachment formed the chief means of getting rid of political opponents. 'J'he Commons, how- ever, found that this method of attacking their enemies was Power of impeach- ment secured. 1621. 1624. THE LEGISLATURK I65 not unattended with difficulties. The king might surrender a minister Hke Clarendon, who had outstaid his welcome ; but 1667. to save Buckingham he would prorogue or even dissolve any 1626-8. number of Parliaments in succession, and he would rescue Danby from the clutches of the Commons by granting him 1679. a pardon beforehand, which should reduce to a farce the whole work of the trial. The Long Parliament not only secured itself by statute against a dissolution without its own consent, but even borrowed from the Crown the method of attainder ; and in the cases of Strafford (1640) and Laud (1641) they turned the preliminary impeachments into bills of attainder, to which they forced the king to give his assent. But apart from this revolutionary procedure of the Commons, the question whether an impeachment was ended by the prorogation or dissolution of Parliament was decided in exactly opposite ways under Charles II — in the negative in the case of Lord 1678, Stafford; in the affirmative in 1685, in order to procure 16S5. the release of the ' popish lords.' It was not finally settled until it was settled in the negative in connection with the case of Warren Hastings. The last method by which the 1791. Crown could destroy the work of the Commons in an im- peachment was forbidden by the clause of the Act of Settle- ment which forbade any pardon under the Great Seal of England to be pleaded to an impeachment by the Commons in Parliament.^ Again, in one case under Charles II — that' ■^'- <^- 53i- of Fitzharris — a new obstacle was suddenly interposed in 1681. the refusal of the House of Lords to entertain the impeach- ment of a commoner. There were so many precedents the other way, including several in the reign of Charles I, that the Commons were justified in their resolution, ' that it is the undoubted right of the Commons in Parliament assembled to impeach before the Lords in Parliament any peer or commoner for treason or any other crime or misdemeanour, and that the refusal of the Lords to proceed in Parliament upon such im- peachment is a denial of justice and a violation of the consti- tution of Parliament.' ' Fitzharris was condemned at common - I lallam, law ; but immediately after the Revolution the impeachment of ■^"^- °f Sir Adam Blair and four other commoners gave the Lords an ..^' opportunity for reconsidering their position, and the report of Pike, 232. a committee appointed to search for precedents was followed l66 ENGLISH CONSTITUTIONAL HISTORY by a resolution of the Lords to proceed with the impeach- ments. Decline of Since the accession of the Hanoverian dynasty both niLTiT*^ attainder and impeachment have been occasionally employed. Thus the Jacobite Rebellion of 17 15 was followed by the passing of Acts of Attainder against a large number of persons concerned, and although an Attainder has been robbed of 1870. half its terrors by a recent Act which removes all disabilities from the heirs of an attainted person, an Act of Attainder might still be employed. On the other hand, it is doubtful whether the suostitution of moral for legal sanctions, such as is implied in the appointment of a committee of inquiry, has not rendered the process of impeachment obsolete. The triumph of the Whigs on the death of Anne was followed by 1714- the impeachment of the Tory leaders, Oxford, Bolingbroke and Ormond. Since then, however, there have been only three cases of its exercise — the Earl of Macclesfield (1725), Warren Hastings (1791-5), and Lord Melville (1804) ; but none of these were for political reasons, the first and last being for malversation of the public money, while Warren Hastings was charged with misgovernment in India. It has been thought that the exercise of any crimi/ial juris- diction of first instance apart from impeachment was forbidden 25 Ed. HI. by a well-known Act of Edward III, passed at a time when St. 5. c. 4. ti^e King in-Council and in-Parliament were still indistinguish- able, which allowed no one to be apprehended on petition or suggestion to the Council without due indictment or prwsent- Original ment. But however much the Lords may have applied this t'"^'^ th prohibition to themselves in general, their representatives in ilian im- the Long Parliament did not hesitate to assume a criminal peachment. jurisdiction of first instance in several cases with which we ^ Pike, 283. should not expect to find them dealing.^ If this was not an usurpation of authority born of a time of political excitement, it may be that the claim to any such criminal jurisdiction came to an end when the Lords practically resigned the claim which for a long time they maintained as a court of first instance in civi/ causes. The formation of the Courts of Common Law, the growth of the ecjuitable power of Chancery, and the development of the Star Chamber, left little if any need for the action of the House of Lords in such cases. But no definite Statute had THE LEGISLATURE 167 deprived them of a jurisdiction which the King-in-his-Council- in-Parliamcnt had once possessed, and the Peers of the Resto- ration attempted to revive it. In 1668, in answer to a petition '668. of the plaintiff, the case of Skinner v. the East India Company was referred by the Crown to the Lords, wjho gave judgement for Skinner. The East India Company obtained the inter- position of the House of Commons, and the matter was turned into a quarrel over parliamentary privilege. The king's personal interference was necessary to procure an erasure of the records of the dispute from the Journals of both Houses ; but the victory remained with the Commons ; for, by never attempting to revive the jurisdiction in dispute, the Lords have practically admitted that it is not theirs. It is as a Court of Appeal that the House of Lords has (2) Appel- kept a prominent position in the judicial system of the country. Jij,^^^^^'* In its relations to the Coutts of Common Law it merely carried on the work of the King-in-his-Council-in-Parliament. It was a Court of Error from the King's Bench and from an inter- mediate Court of Error, the Exchequer Chamber, to which some matters were taken from King's Bench and Exchequer. A writ directed the judges of those courts to send the records of the case in question to the King in Parliament, where with the assent of the Lords spiritual and temporal any error might be corrected. But after the House of Lords had formed itself, there grew up the equitable jurisdiction of the Chancellor — perhaps, as much as the House of Lords itself, an offshoot of the comprehensive body of the King in Council in Parliament. The question of the relations of Chancery to the House of Lords does not seem to have arisen before the reign of James I, when there is recorded the first petition of ' appeal ' to the House of Lords against a decision of the Chancellor. Hitherto the contest had been between the Chancery and the Courts of Common Law, but in this very reign the question was decided in favour of the Chancery, vfhich, flushed with its lately won victory, not unnaturally resented the attempt of the House of Lords to reduce it to the subordinate position. The matter 1675. came to an issue in the case of Shirley v. Fagg, when, after a lengthy quarrel due to the interposition of the Commons over a matter of parliamentary privilege, the jurisdiction over appeals fiom Chancery remained to the House of Lords. 168 ENGLISH CONSTITUTIONAL HISTORY ' Anson, 357- Pike, 304-305- " Vide note, p. 170. •'' Cf. case of O'Connell, 1844. ■* Anson, i. 223. Pike, 306-307. Privileges of the House of Lords. •'' Freeman, Essays, 4th Ser., 493. Moreover, so long as the Court of Exchequer retained an equitable jurisdiction, an appeal by way of petition lay to the House of Lords from the Equity side of the Court of Exchequer, until in 1841 this jurisdiction was transferred to Chancery. So far as England was concerned, after being momentarily threat- ened with extinction in the Supreme Court of Judicature Act of 1873, the appellate jurisdiction of the House of Lords was saved by the Supreme Court of Judicature Act, 1875, and was for the first time placed on a statutory basis by the Appellate Jurisdiction Act, 1876. Rules made in pursuance of the Supreme Court of Judicature Act, 1875, by the abolition of proceedings in error, have placed Chancery and the Courts of Common Law on the same footing in intermediate appeals, and for the first time recognized the procedure of an appeal in common law.^ At the same time the Appellate Jurisdiction Act, 1876 (i5 4), provided for the bringing of every appeal to the House of Lords by way of petition. - Finally, the Act of 1876 introduced a far greater innovation ; for, it authorized the creation of Lords of Parliament, who were neither peers nor yet possessed of hereditary right. Indeed, as they were first planned, their title to be even Lords of Parliament lasted only so long as they discharged the functions of Lords of Appeal for which they were created. But the two Lords of Appeal, now increased to four, have by a subsequent Act of 1887 been permitted to keep their seats for life. The object of these appointments was to increase the efficiency of the House in the exercise of its judicial functions, and, although in the hearing of appeals every member of the Lords is entitled to be present and to give his vote,"' a convention dictated by obvious propriety has left the decision in the hands of those members of the House who are past or present holders of high judicial office."* § 24. It has been truly remarked that the consolidation of the House of Lords has saved the country from the curse of a noble caste.^ For, the English peerage differs from a foreign nobility in that its privileges attach to the perso7i and not to the family. In the eyes of the law the children of a peer are commoners in rank, and whatever privileges he may enjoy belong to him individually and in no way extend to them. For in their origin such privileges were THE LEGISLATURE 169 due to the membership of an otScial class. This carried with it a certain social status not sufficiently marked to make its members into a caste, but enough to justify their claim to certain privileges on the ground that the claimants were all peers. Thus, in asserting the right of amercement by their peers, the earls and barons of the thirteenth century were claiming no more that what the practice of the king's courts granted to every freeman. But the practical difficulty in the working of this principle was overcome by the king's assertion of the equality of his barons of the Exchequer for this purpose with the other barons. It was on the same ground of member- ship of an official class that barons were treated in the king's courts in several small ways on a footing different to that of other suitors, and that in the reign of Edward VI, when the curious privilege of benefit of clergy «v'as taken away from all except those actually in Holy Orders, it was saved as well for peers and lords of Parliament ; and even when it was abolished for the clergy in 1S27, another Act of 1841 was deemed ad- visable, which should do away with its special applicability to the case of peers. But most of the privileges of peers have been claimed in connection with membership of the House of Lords. Of these the one preliminary to the enjoyment of all the others is that of the right to a writ of siimmo7is. This was definitely asserted by a committee of the Lords appointed to consider the refusal of a writ to the Earl of Bristol in the reign of Charles I, 1626. and the assertion marks a complete change from the time when attendance in Parliament was regarded as a burden. As to their other privileges, although the Lords are supposed to hold them from time immemorial, and do not therefore, like the Commons, go through the form of petitioning for them to the Crown, yet many are naturally of the same nature as those which will be dealt with in speaking of the House of Commons. There are, however, considerable differences in details. Thus freedom from arrest, except on criminal charges, is claimed by both Houses ; but the Lords have never renounced the extension of that privilege to their servants and followers. The parallel privilege of not being impleaded in civil actions was by law gradually reduced and finally withdrawn altogether from members of both Houses. The right of guarding the constitu- tion of their oivn asseinbly is also common to the two Houses; lyo ENGLISH CONSTITUTIONAL HISTORY but while the Lords can refuse to allow a new peer to take his seat, who has not fulfilled the usual conditions, it lies in the power of the Crown to decide in all cases of claims to an old peerage, although, as a matter of fact, such cases are usually referred to the House itself. Again, while it is in the power of both Houses to commit an individual for cotitempt of their orders, the House of Lords can pass sentence for a definite term, nor is the prisoner released on the prorogation of Parlia- ment. Freedom of speech is no less important to the Lords than to the Commons ; and violations of it, though not so frequent as in the Lower House, have been not altogether unknown. Three special privileges the Lords seem to have enjoyed to themselves. In the first place, every individual peer in his capacity of an hereditary councillor of the Crown ' Pike, 252. has the right of personal access to the Sovereign} Secondly, until the Lords waived the right by resolution in 1868, they could, unless the sovereign demanded their personal atten- - Ibid. 243. dance, give their votes by proxy.- This custom dates back perhaps to a time when it was important that the Crown should ensure in any shape the assent of the barons in- dividually to the money voted and the laws passed by the Commune Concilium. Thirdly, the peers have frequently exercised a right, which apparently it would be equally open to the Commons to assume, of recording a protest against any =* Ibid. 245. division on the Journals of the House.^ Finally, in the case of two more strictly personal privileges. Lords and Commons alike have waived their claim to be exempt from appearing as witnesses in a law-court; while, since 1870, the privilege of freedom from the necessity of serving on a Jury has been secured to the members of both Houses by Statute. [N.B. Before the arrangements of 1875-6 the only way of questioning the ruling or decision of a Common Law Court was by alleging error apparent on some part of the record of the proceechngs, whereas appeals from (^"hancery were by way of petition for a reliearing and revision or reversal of the whole or any part of the judgement or decree. The result of the arrangements of 1875-6 is that the House of Lords is now the final Court of Appeal from all the Ct)urts (other than ecclesiastical) of the United Kingdom, while the Judicial Connnittee of the i'rivy Council is the final Court of Appeal for the rest ol the empire and for the ecclesiastical courts. Of both these courts of final apj)eal the four Lords of Appeal are the nucleus, aflorced in the one case by peers, in the other case by privy councillors who have held high judicial office.] CHAPTER IV THE HOUSE OF COMMONS — ITS FORM number for § 25. So far we have traced the growth of the legislative The mem- body as a whole up to the completion of the form of the ^^|''^ "| ^^^ Model Pa7-lia7nent in 1295. We have then followed the for- (-Q^^j^ions^ tunes of the old Commune Concilium, which it superseded, until the members of that assembly, with more definite, if not with actually new qualifications, gradually passed from feudal tenants-in-chief to peers, and their assembly from the House of Lords to the Other House and so to the Second Chamber. The decadence of the House of Lords involves the rise to power "of the House of Commons. And the first question to , be answered is, who were the members of the House of" Commons? It has been shown already that the Estate of the Commons consisted of two distinct parts — Knights of the Shire, and Citizens and Burgesses. Of the Knights of the Their Shire, there were originally and normally two from each of""'"!'^'' thirty-seven shires, making a body of seventy-four, permanent shires : in numbers though not in individuals. The omitted shires were Chester and Durham, which were counties palatine, and Monmouth, which formed part of the Welsh Marches. Representatives from Wales were called in 1322, and again in 1327 — in the former gase consisting of twenty-four from North Wales and an equal number from South Wales, summoned through the Justiciar of \\'ales; in the latter instance coming only from North Wales, but summoned in a similar manner. Wales, however, obtained no permanent status in Parliament until the reigR of Henry VIII. Out of the Welsh Marches he, for the first time, formed the English shire of Monmouth and at least four of the shires of South Wales ; and from 1536 on- 1536. wards he summoned two members from the shire and one from 171 172 ENGLISH CONSTITUTIONAL HISTORY the borough of Monmouth and one member from each of the twelve Welsh shires, together with one from each of the county 1543- towns. A few years later Chester for the Hrst time sent 1673. two members ; and, finally, Charles II included Durham, both shire and city, in the parliamentary system of the country. Thus the representatives of the shires remained 1707. until the eighteenth century, when the Union with Scotland added thirty members for the shires, and the Union with 1800. Ireland sixty-four on a like account. Effects of The first Reform Act of 1832 split up several shires into the Reform electoral districts, and increased the number of shire re- Acts presentatives in England and Wales by sixty-five. The Representation of the People Act of 1867 added forty-four members for English and Welsh, and three for Scotch shires ; and, finally, the Act of 1884 raised the number for England and Wales to 253, and fixed it for Scotland at thirty-nine, and for Ireland, which had been untouched in 1867, at eighty-five. {2) the The members for cities and boroughs exhibit much greater oroug s. fluctuation in numbers. Under Edward I representatives from 166 were at one time or another summoned; but although two from each was the orthodox number, sometimes it varied between one and two according to the size of the borough. But immediately, for reasons and by methods to be noted Immediate presently, a decline in the number of represented boroughs of"the"^' '" is to be marked. Under Edward II the number represented number. altogether was 127: under Edward III it sank further to ninety-nine, at which it was arrested by the Act of 1382 forbidding the sheriff to omit any city or borough which had 1382-1445. been wont to send representatives. For the next sixty years the parliamentary boroughs remained at this number. They were very unevenly distributed over the country. Thus, between the reigns of Edward III and Edward VI, the three shires of Lancashire, Hertfordshire and Rutland sent no burgesses at all ; while sixteen others, including Middlesex, supplied members from only one borough, and seven others from only two boroughs in each shire. On the other hand, it is noteworthy that London, though only recjuired to send twp members, nominated four in order to ensure the attendance of two; and from 1378 onwards the re[)resentation re(]uired of London was permanently raised by writ to the higher number. TIIK HOUSE OF COMMONS — ITS FORM 1 73 Finally, of the twelve shires not already enumerated, Wiltshire had no less than twelve represented, a number which was increased by subsequent creations ; Sussex contained nine boroughs, Devon and Dorset seven, and Somerset and Corn- wall six apiece. On the whole, with the significant exception of Cornwall, the representation in the fifteenth century may be considered as affording a rough index of the relative wealth of the different parts of the country.' Thus for the years ' S. C. H. following 1382 the borough representatives maybe placed at § 433 "ot^s. 200 in number. Hitherto one of the methods by which boroughs had escaped Its sub- their constitutional liabilities had been through royal charter, sequent Under Henry VI for the first time, commencing from 1445, the king by royal charter created new parliamentary boroughs. At first these w-ere perhaps not necessarily so much new as renewed representations. Of Edward I's 166 summoned towns, more than seventy had for one reason or another dropped 'Out of Parliament. Edward H added ten on various occasions, and Edward Hi's only permanent addition was the Cinque Ports, eight in number and each sending two members. Now, by the new method of charter, Henry VI added eight boroughs to the representation of the country, four of them in the already liberally represented Wilts, and Edward IV imitated him by the creation of four more. It is to the Tudor period that we must look for an extensive use of this method.- It seems right to " For list of think that Henry VIII's additions, including as they did four P'^^^'^^^ or five English towns — of which two were Chester and §'443 note. Berwick — Calais and the Welsh county towns, were made wdth no sinister motives ; but when, of Edward VI's creations, together with ten revivals are found fourteen new creations of which eight were in the royal Duchy of Cornwall, it is clear how powerful a means of influence over the House of Commons the use of this prerogative had placed in the hands of the king. It is, indeed, to be read in connection with the narrowing of the borough constituencies, also effected by charter, which was going on at the same time. Further creations of boroughs, then, may be attributed almost entirely to sinister designs. Thus, Mary called into existence ten new boroughs and revived two, and Elizabeth was responsible for no less than twenty- four new boroughs and seven revivals. Under James I six 174 ENGLISH CONSTITUTIONAL HISTORY ^ Anson, i. 124. Effects of the Reform Acts. new constituencies, including the two Universities, were created, and eight restored to the representation from which they had formerly escaped : while under Charles I nine were restored. It is fair, however, to say that royal charter was not the only method of increasing the number of borough representatives. Some towns sent members in compliance with special statutes, and some as a result of a grdinicd petition for the revival of old rights of representation. Indeed, under James I, 'there was a strong tendency to revive such ancient and forgotten rights of representation, and the House of Commons resolved, on May 4, 1624, "that a borough cannot forfeit this liberty of sending members by non-user.^ " ' As a result of this resolu- tion fifteen boroughs regained parliamentary representation under the first two Stuarts. In one way and another, then, 180 members were added to Parliament between the reigns of Henry VIII and Charles II, the last instance of such addition being the grant of two members by royal charter to the borough of Newark ; and at the end of the seventeenth century the representatives of the boroughs were over 400 in number, The Union with Scotland added fifteen members for the boroughs, and that with Ireland thirty-six on a like account. The Reform Act f?/" 1832 made great changes both in the number and the distribution of the borough seats. Fifty - six boroughs represented by i x i members were absolutely disfranchised ; and thirty-one were deprived of one of their members. Of these 142, the larger proportion were given to English counties (sixty-five), and to the increase of the representation in the other parts of the British Isles. The rest were distributed among twenty-two hitherto unrepresented large towns which acquired two members each, and twenty- one smaller towns which should supply single members to the House of Commons. By the Act of 1867, fifty-two seats were cancelled by partial or total disfranchisement of boroughs, of which only twenty were redistributed among towns in England and Wales, either by the addition of an extra member to, or by the subdivision of already existing constitu- encies, or lastly by the creation of entirely new parliamentary boroughs. Finally, the Act of 1884 cancelled no less than 160 borough seats, which were redistributed almost entirely (for only eight new boroughs were created) among already TIIK HOUSE OF COMMONS — ITS FORM 1 75 existing electoral divisions, on the totally new principle, except in certain specified cases, of single-member constituencies based upon an attempt at equal electoral districts. The result in numbers is that English boroughs now claim 227 members, to which eleven are to be added on account of Wales, while Scotch boroughs supply thirty-one and Ireland sixteen to the sum total. That sum total of the ivhole House of Cormno^is has almost steadily increased. A mediaeval House in the fifteenth century contained about 300 members; by the end of the Tudor times it had been increased to 460 ; and when the royal methods of addition ceased under Charles 11, it stood at 513. The Unions with Scotland and Ireland brought it up to 658, a number which, despite its temporary reduction through the disfranchisement of certain boroughs for corrupt practices, remained unaltered by the First Reform Act of 1832, or the Representation of the People Act of 1867. Finally, the Act of 1884 has slightly increased the total number to 670, of which England claims 465 and Wales 30, while to Scotland were awarded 72, and 103 to Ireland. § 26. The new principle of an approximation to equal Amalga- electoral districts, together with the assimilation of the county '"^^'o'^ °f | and borough franchise, has gone far to obliterate the old dis- and • '/ tinctio7i between county and bo?'Oi/gh membei's. It was, of course, borough j originally intended that the two classes should represent "^^'" ^^^' I different interests, namely those connected with real and with personal property respectively, in other words, land and mer- chandise. But a fortunate and early assimilation of interests, no less than of classes, brought about a close union be- tween the two bodies of representative members. Nor was this unnatural. In the first place, the representative character Reasons. was common to both classes of members. The number of the shire representatives was fixed, while that of the boroughs fluctuated largely ; but the individuals of both bodies were equally subject to change, and at an early stage it became clear that the only hope of making their influence felt with the king and lords lay in the united action of the Commons. In the next place, the interests of shire and borough members alike"! / were local, as contrasted with the distinctly class interest of the s / baronage on the one hand, or on the other, of the two bodies 176 ENC.LISII CONSTITUTIONAL HISTORY within their own ranks — namely, the lawyers and the merchants — which in early parliamentary days threatened to consolidate themselves into separate Estates. These causes of joint action were further enhanced by the employment of the same agency — that of the shire court — for the election of both classes of representatives, l^ut the ultimate reason of amal- gamation is probably to be found in the fact that, almost from the outset, the social distinction between the two classes of knights and burgesses was very slight. Whatever it may have been originally, it was very soon bridged over. Wealthy merchants purchased freehold property and, as members of the shire court, became liable to distrain^ of knighthood : while, owing to the extreme unwillingness displayed by Vtie higher class to serve in Parliament, valetti or esquires — that is, men below knightly rank— were elected to serve as knights of the shire. Henry III or Edward I had compelled or dis- trained all holders of the requisite amount of land, no matter on what tenure they held it, to take up the duties of knight- hood on penalty of a heavy fine. Their object was probably in part to ensure, for the purposes of local government, a suffi- cient supply of men of knightly rank. But men so shrank from the burden of attendance in Parliament, which was then relieved by no known corresponding advantages, that of the two alternatives they preferred to incur the fine. The shire courts were consequently so far compelled to return men of a lower social rank that in 1325, for example, only twenty-seven members were men of knightly status. But the Crown did not accept this change without a protest. In 1340 the writs demanded the election of two '■belted^ Qualifica- knights (gladiis cinctos) for the shires ; this demand was repeated tionsof (i) at intervals until, after 1376, it became practically a permanent knights for d<^scription. Yet at first the effect was small ; and in the Good the Shires ; Parliament which assembled in response to the last-mentioned writs, only half of the shire members were knights. Indeed, whatever effect there was in the intended direction was due rather to the social importance conferred on knighthood by the rise of the spirit of chivalry, and also to the gradually increasing political importance of a seat among the Commons. But in any case the return of the wished-for class was very partial, and in 1445 the Crown yielded the point on which it THE HOUSE OF COMMONS — ITS FORM 177 had tried to insist, by assenting to a Statute which required 23 Hen. VI. for the shires the election of either knights or notable esquires ^- ^^• capable of becoming knights, that is to say, of persons in any case above the rank of yeomen. At the same time, an attempt was made to restrain the choice of the electors ; for, not only was a Statute of 141 3 embodied, which required that the i Hen. V. representative should be a resident within the county or c. i. borough which chose him, but it was now demanded that in the case of the shires the representatives should be ^gentlemen (2) gentle- bo?-n.' ' This was a distinct attempt to undermine the constitu- men bom tional principle, so important in the development of English shires; life, of the legal equality of all freemen outside the small circle ^ S. C. H. of the actual peerage. Fortunately it had no especial effect ; ^ 4i9- members seem to have been drawn from the same social class before and after the Statute. Meanwhile, from the quiet decision of this struggle there followed two results. The amalgamation of the representatives of shire and borough for joint action was rendered easier, while at the same time the Crown and Parliament together obtained that upper class representation which w-as perhaps the real aim of the king, and which, down to 1832, formed so definite a feature of our parliamentary system. Yet despite this harmony and apparent similarity, the Early weak- position of the landed gentry was as yet too assured for an "^^^ of the ,• • • 1 11 -1 1 1 1 boroughs in equality m miportance to be really possible between the padiament. representatives of both classes of the Commons. The knights of the shire were the undoubted leaders. ' They were,' says Dr. Stubbs, ' the leaders of parliamentary debate ; they were the link between the good peers and the good towns ; they were the indestructible element of the House of Commons ; they were the representatives of those local divisions of the realm which were coeval with the historical existence of the people of England, and the interests of which were most directly attacked by tbe abuses of royal prerogative.' In short, // tvas by the knights of the shire that ' the victory of the constitutioti was won.'- Indeed, until the time of the Tudors, " S. C. H. with one exception (Thomas Yonge of Bristol), no prominent ^ ^^^* member of the Commons was representative of a borough. The reasons for this comparative insignificafice of the burgesses Reasons, are important. In the first place the attention of the townsfolk N 1/8 ENGLISH CONSTITUTIONAL HISTORY was concentrated on the internal development of their trade and organization. It was during the fifteenthn^entilf)^ that the monopoly of power by the gilds was causing the artisans to migrate into the villages and the journeymen to form gilds of their own, which gradually resulted in what is known as the 'domestic system ' of manufacture. And at the same time the French wars so diminished commerce and increased taxation that the towns were seriously affected. Hence the petitions, under Henry VI and his successors to the middle of the sixteenth century, for the remission of those portions of a subsidy which, on the assessment of 1334, should have been levied from them. Moreover, the external position of the boroughs Avas very weak. Their desire to escape the burden of representation left them at the mercy or manipulation of the sheriff, who could take bribes to omit them or could appoint his own nominees. But perhaps the chief influence in the weakening of the boroughs is to be found in the selfish action of their great men. The merchants were probably in the main country gentry and members of the shire courts. As such they lost touch with their fellow townsmen and, for the sake of their own private gain, were not unwilling to enter into separate dealings with the king. Indeed, not only was the power of the Commons thus at times almost annihilated, but there seemed a likelihood of the rise of a separate Estate of merchants. For, assemblies of merchants from time to time were brought together, which should grant supplies of wool to the king apart from Parlia- 1303. ment. Edward I's preliminary attempt at this met with failure; but during the early years of Edward III it be- came a frequent method of raising supplies which took the shape of either additional customs or free gifts. By such private negotiations the king would often renew the grants made to him in the previous Parliament ; and it only remained for the next Parliament to authorize the taxation which had been so unconstitutionally obtained. But by the end of Edward Ill's reign this method of raising money gradually 1353. ceased. Not only did the Statute of Staples in 1353 regulate 1362. the export trade in wool, but by direct enactment in 1362, and 1371. again in 1371, Parliament prohibited such dealings with the merchants. These, however, would have been evaded, had / V THE HOUSE OF COMMONS — ITS FORM 1 79 not the merchants themselves discovered that Edward's demands on them were out of all proportion to the privileges , which they obtained in return, and had they not therefore? / understood that their real interest lay in union with the ; ^' Commons.' '5. C. H. But meanwhile, the internal decay of the boroughs prevented ^' '95- 277- them from taking a prominent part in the affairs of the nation. Their rise It need not, however, be supposed that they were of no con- '^° '^por- stitutional importance. We have seen that after 1382 their number was as fixed as that of the represented shires, and that the first change under Henry VI heralds a continuous numerical increase. Nor was it confined to mere quantity ; for the adhesion of the towns was an important item in the victory of the Yorkists. But more significant are a few facts to be gleaned from the parliamentary history of the Tudor times. Thus, froiVi 1532 to 1536 the Speaker of the House of Commons was member for a borough, and Henry VIII's minister, Thomas Cromwell, represented Taunton in Parlia- ment. The reason for this change in the character of the burgesses lies in the fact that representation was ceasing to be a burden. Of this, generally, there are many proofs. Thus, to select one which concerns our immediate question, an Act of Henry V's reign, already noticed, had attempted to check the 1413. arbitrary manipulation of elections by the sheriff, by enacting a ijualificaiion of local 7'esidence for the elected members. This, (3) local however, if it ever had any effect, speedily became obsolete, residence ; and, so far as regards burgesses, in 157 1 it was repealed. But 1571. for some unexplained reason the Act of 1571 never found its way on to the Statute book. The old Act of 141 3 remained, though it was never enforced, and was not finally removed from the Statute book until 1774. The debate over the bill 1774. of 157 1 gives us the first reported speeches 'which discuss in detail the constitution and forms of Parliament;' and it is noteworthy that one of the chief objections to the repeal of Henry V's measure was founded on the fear that ' Lords letters may henceforth bear all the sway,' — that is, the Commons practically chose to be the nominees of the Crown rather than of the Lords. The opportunities of the Lords had not yet come, but in (Nomin- this same Parliament the methods were foreshadowed by which ^^'°" , ^ Seats.) I So ENGLISH CONSTITUTIONAL HISTORY they were to establish their future influence. For we find the first instance of the purchase of a seat in the penalties imposed on the Corporation of Westbury for selling its representation to a certain Long, who himself, curiously enough, seems to 1 Prothero, have kept his seat.^ The multiplication of ' rotten boroughs,'' ^^^' as they came to be called, by royal charter, has already been mentioned. To those which were never intended to be other than nomination seats were added towns whose constituencies had been subsequently narrowed, and towns which had come to a stationary condition or had actually decayed. The trans- ference of power from the king to Parliament and the accumu- lation of great properties which marked the early years of the eighteenth century, placed many of these nomination seats in the hands of noblemen or wealthy commoners. Thus in 1793 the Duke of Norfolk had eleven seats in his gift, the Earl of Lonsdale was answerable for nine members of the House of Commons, and other noblemen for a lesser number. ' Seats,' it has been remarked, ' were held in both Houses alike by - Erskine hereditary right.' - In boroughs of a slightly larger size seats May, i. 333. could be obtained either by out-and-out purchase, by the pay- ment of an annual rent, or by a system of individual bribery. The example of Long found ready imitators as the growing commerce brought to the front a new class of ambitious men who had to make local connections for themselves. Such especially were the ' Indian Nabobs,' adventurers who had returned from East and West Indies with ample fortunes, free from party connections, and bent on serving merely personal ends. Their influence reached a culminating point in the early years of the reign of George III, by whom they were enlisted in the ranks of the ' King's Friends,' a party formed to undermine the political predominance of the Whig nobility. An especially flagrant case of corruption would be punished by temporary disfranchisement by the House of Commons itself. But this was too slight a deterrent, and the sale of boroughs was general and notorious. Indeed, at the election of 1768, it was complained that, owing to the competition of the Nabobs, the general price of boroughs had risen. Not that legislative attempts were wanting, from the time of William III onwards, to check both bribery and the sale of scats ; but too many interests were involved to render such attempts success- TITE TTOUSE OF COMMONS — ITS FORM l8l fill ; and even a high-minded man Hke Sir Samuel Romilly ex- cused while he condemned the system, as the only means by which an independent member could obtain a seat. The result was that, at the beginning of the nineteenth century, of the 658 members of the House of Commons no less than 487 owed their seats to nomination, of whom 218 in England and Wales alone were returned by eighty-seven peers, and 137 by other individuals of lesser rank. This system left only a third of the whole House of Commons to be chosen by even the limited constituencies which at that time possessed the franchise. So far, then, as the two bodies of knights of the shire and burgesses could now be said to represent any particular interests ; while the former were the nominees of the free- holders, — a decently large and independent, but rapidly de- creasing body; on the whole the members for boroughs represented no one so much as the great Whig aristocracy and their commercial allies. The attempts to correct this by the introduction of a quali- fication for members seem to have failed of effect. The early qualification of residence was fortunately not enforced, though, despite the events of 15 71, the law remained unrepealed. In 1 7 10, after two unsuccessful attempts, a property qualification (4) pro- was introduced with elaborate safeguards for its enforcement. P^'^'y '■> It consisted of an estate in land which, for the knight of the 17 10. shire, should be worth ^600, and for a burgess ^300 a year. It was however ' systematically evaded,' and was perhaps only maintained so long as it was because the extreme reformers regarded its repeal as so essential that moderate men began to fancy there was some peculiar efficacy in its maintenance. Indeed, it survived the First Reform Act, and in 1838 was 1838. only enlarged so as to include a similar value in personal property or in real and personal property combined ; nor did it disappear until 1858. 1858. Meanwhile, to the old qualifications, whether of 'belted knights ' for the shires, or of residence or property for knights and burgesses alike, had been added a number of oaths and (5) oaths •declarations. These may be regarded as the result of the ^"^ ^.^" Reformation or of the Roman Catholic tendencies of the Stuarts ; and, since the removal of all danger from Jacobite invasions, they have been gradually removed or substitutes 1 82 ENGLISH CONSTITUTIONAL HISTORY have been found for them,. At first such oaths appHed to 1563- the House of Commons alone. Thus m 1563 the oath of (a) supremacy was required to be taken in the presence of the Lord High Steward before either knights or burgesses could enter 1610. the Parliament-house. To this, in 16 10, was added the oath of {b) allegiance, administered in the same manner. Hitherto nothing had hindered Roman Catholic peers from maintaining 1678. their seats in the House of Lords ; but from 1678 this became no longer possible ; for these oaths were to be required of both Houses and should be taken at the tables of their respective Houses. And if there had been any doubt in the matter, to these was added a declaratio7i against fransubstanfiation, which was only removed by the Catholic Relief Act of 1829. The circumstances of the Revolution of 1688 further led to the 1701. imposition of an oath of (r) aspiration, repudiating the claims of the descendants of James II to the throne, which was required in 1 701 and was enforced by penalties in 17 14. The object of these three oaths accompanied by the declaration was pri7narily political and not religious: 'it does not appear that nonconformists were ever disqualified as such, except in so far as their religious conviction prevented them from taking any 1 Anson, form of oath." Until 1829 Roman Catholics were excluded *■ ^° ■ by the Act of Supremacy, which was then altered for them, ""^^^ and by the declaration against transubstantiation, which was entirely abolished ; Jews were excluded by the oath of abjura- tion, which ended with the words 'on the true faith of a Christian.' By an Act of 1858 this could be dispensed with. Quakers, Moravians and other sects were excluded by their conscientious objection to an oath: an Act of 1833 allowed 1858. them to substitute an affirmation. Meanwhile, in 1858, the three oaths of allegiance, supremacy and abjuration had been 1866. welded into one; in 1866 the words 'on the true faith of a Christian ' were omitted in all cases, and the penalties annexed by the Act of Charles II were partially removed. The final phase in the matter was due to the conduct of Mr Bradlaugh in 1880, who, having refused to take the oath and having been adjudged by a Court of Law to be liable thereby to the statutory penalties, then endeavoured to take the oath until forcibly prevented by the House, which considered its forms insulted or at any rate nullified by his conduct. THE HOUSE OF COMMONS — ITS FORM 1 83 But the result was the Oaths Act of 1888, which under all cir- 1888. cumstances allowed an affirmation to be substituted for an oath. § 27. From the necessary (jualifications for a seat in Par- Disijualifi- liament we turn to deal with disqiialiiications in themselves. ^^\^^^^'^ , (i) Mental. These depend either on Common or on Statute law, and may be divided into five classes. In the first class may be placed those persons who, whether theoretically or practically, are mentally disqualified for responsible business. Under this head come those who are technically called Ittfants, as well as actual imbeciles and lunatics. Despite the Common law, which was confirmed by statute in the reign of William III, before the First Reform Act it was no uncommon thing for minors to be elected and to sit without protest in the House of Commons. The most notorious instances were those of Charles James Fox and Lord John Russell. As to those who are really mentally unfit, it is to be remembered that a member once elected cannot resign his seat, and that his attendance can be enforced by a call of the House ; but though suggested as late as 1882, such a method has not been resorted to since 1836. The only method, other than dissolution of Parliament or expulsion from the House, by which a member can rid himself of his parliamentary duties, is by appointment to the steward- ship of the Chiltern Hundreds or of certain old royal manors, (Resigna- which are merely nominal posts, resigned as soon as their object ^^^ j^ ^j^^ is effected and now granted as a matter of course, although in Commons.) the eighteenth century it was not uncommon for political reasons to refuse to grant them. The attitude of the House in this matter was the relic of a time when members were glad by any excuse to escape attendance, and when such absence might be a serious impediment to business. Moreover, before the eighteenth century office was not a disqualification, and members could only get exemption by permission of the House itself. Thus the House was inclined to look suspiciously at all pleas of ill health, and would not declare a vacancy unless the malady could be shown to its satisfaction to be incurable. Since 1886 the matter has become subject to 49 Vict. legislation ; and continued absence of a member, without any c- 16. call of the House or other method of compulsion, would meet with its due reward in his rejection on the next occasion when he sought the votes of his constituents. 1 84 ENC.LISII CONSTITUTIONAL HISTORY Social. 33 & 34 \ ict. c. 14. §7. ' Anson, i. 246 note. 2nd edit. Cf. also Pike, 239. (3) Official. A second set of disqualifications is to be found in connection with certain c/asses of persons. Thus Alte/is, though originally allowed to acquire by naturalization the right of sitting in Parliament, wore in 1700 disqualified, and remained so, with certain memorable exceptions, until an Act of 1870 placed a naturalized person on the same footing for all purposes as a British subject. Under the same head come Peers. As regards English peers no question could arise ; and by an order of the House of Commons made on January 21, 1549, the sons of English peers were made eligible, — an important witness to the rising influence of the Commons under the Tudor kings. Scotch peers who are not among the sixteen representatives of that body, are ineligible ; and their eldest sons, who had never sat in the Scotch Parliament, were also ineligible until the disability was removed in 1832. Irish peers, on the other hand, who are not among the twenty-eight representatives, are by the Act of Union allowed to sit for any constituency of Great Britain. It has been contended lately that succession to a peerage only renders vacant a seat in the House of Commons if the new peer applies for his writ. It has been pointed out in answer, that ' the Peerage is a status in- volving, among other things, liability to a summons if it be the Queen's pleasure to issue the writ. It is the status, not the summons, which causes the disqualification.'^ Besides social classes there are certain official classes to whom this inability to enter Parliament has been or still is extended. First among these come the Lawyers. It has been noticed already how nearly the merchants in the early days of Parlia- ment formed a separate Estate. The lawyers at one time seemed likely to assume a similar position. Edward I patro- nized the lawyers as much as he courted the merchants, and the possible evil effects of his patronage were only averted by the fact that the Common law prevented the growth of a legal caste such as the study of the Roman law encouraged abroad. But further, in the general difficulty of procuring persons will- ing to be representatives, the House of Commons was flooded by common lawyers, the only class who found a visit to London advantageous for their professional interests. Hence came, on the one side, the extreme jealousy shown by the House of Commons towards the action of the Privy Council THE HOUSE OF COMMONS — ITS FORM 1 85 and of Chancery alike ; hence, also, on the other side, came those complaints of the use to which the lawyers put their parliamentary membership for the furtherance of their own interests, which led in 1372 to a statute, or rather perha[)s 1372. a parliamentary ordinance, disqualifying lawyers practising in the king's Courts from sitting as knights of the shire. This does not, however, seem to have had the slightest effect. Indeed, when in 1404 Henry IV excluded lawyers by writ 1404. from what was consequently known as the ' Unlearned Par- liament,' his action met with much adverse criticism, for it was regarded as an interference with the right of free election by the shires. But the same feeling did not apply to the exclusion of that small band among the lawyers, who had risen to be xoyol/udges. As we have seen, they were regarded in a sense as attendants rather than members of the House of Lords, and as such they would be excluded from the House of Commons by the Common law. This was further confirmed by a resolution of the House in 1605 on the ground that they were 'attendants 1605. as Judges in the Upper House.' To the English Judges were added the Scotch under George II, and the Irish under George IV. The holders of the newly created judicial posts were disqualified as those posts were created. The sole excep- tion was the Master of the Rolls, until he too was finally ex- cluded by the Supreme Court of Judicature Act of 1873, which 1873- disqualified for a seat in the Commons all Judges of the High Court of Justice or of the Supreme Court of Appeal. The same ordinance of 1372, which forbade the election of lawyers as knights of the shire, also excluded Sheriffs during their term of office from candidature either for the shire or for any borough within it to which their own precept extended. Practically, however, the restriction was only interpreted to apply to the shire in which the sheriff was the returning officer, and a later resolution of the House has extended the ex- clusion to all returning officers in this sense. The wholesale local exclusion of the sheriff has been limited by an Act of 16 & 17 1853, by which writs for the cities and boroughs were no ^'*^'^' ^- ^^• longer to be addressed to the sheriff of the shire in which those places were situated. It seems doubtful whether Holy Orders originally rendered 1 86 ENGLISH CONSTITUTIONAL HISTORY 1801. 41 Geo. III. c. 63. 1829. 33 & 34 Vict. c. 91. (4) Govern- mental. ' Anson, i. 80; cf. Erskine May, i. 369. Vide Ilallam, iii. 192-193. •^ S. C. 530-1- 6 Anne, c. 7 [41] s. 24. their recipient ineligible for membership of the Commons. In 1785 a person in deacon's orders had been admitted by a committee of the House, and the precedents collected by a committee in 1801 have been pronounced inconclusive. We have seen, in the reign of Richard II, the presence of Percy and Ha.xey who seem to have acted as clerical proctors, but to have been ordinary members of the House, although the latter was certainly in orders of some kind. Such was also the position of Alexander Nowell in 1554. The question, however, was finally decided in 1801 in connection with the election of the Rev. J. Home Tooke as member for Old Sarum. While in the doubtful state of the precedents he was allowed to maintain his seat, it was declared by Statute ' that no person having been ordained to the office of priest or deacon, or being a minister of the Church of Scotland, is capable of being elected.' To these were added the Roman Catholic clergy by the Catholic • Emancipation Act. But finally, by an Act of 1870, it became possible for any clergyman of the Church of England legally to divest him.self of his orders and so to render himself eligible for election to Parliament. A fourth and important class of disqualifications comes froni cotinectioii ivith government, official or otherwise. These may be taken to date from a period just subsequent to the Revolu- tion of 1688, 'when the strength and irresponsibility of the House of Commons made the Crown as anxious to obtain some influence over its members as the House was to ex- clude persons who held office at pleasure of the Crown.' ' A beginning was made with Commissioners of Stamps (1694) and of Excise (1699), but these were only preliminary to the sweeping clause of the Act of Settlement (1700) by which, after the accession of the House of Hanover, this ineligibility was extended to any person who held an office or a place of profit under the kingp' But this never came into operation ; for in 1 705-6 it was, with certain important exceptions, re- pealed. These exceptions form the basis of the law on the subject to the present day. They include (a) the holders of any new office created after October 25, 1705, (l>) the holders of certain specified offices, {c) pensioners of the Crown during pleasure, to whom were added under George I pensioners for terms of years. Officers of the army and navy who might THE HOUSE OE COMMONS — ITS EORAf I 87 receive commissions while acting as members of the Commons, were specially exempted from discjualification : but another clause provides that even the acceptance of one of the old offices vacates the seat of the member who accepts it, but allows him to seek re-election. This originally useful check upon appointments by the Crown is still retained, although it has sunk merely into 'a needless and vexatious delay in the conduct of public business when a new ministry takes office, or a new member is introduced into a ministry.'^ The ^ Anson, principle of disqualification was steadily continued in the cases ^- ^3- of both old and new offices and with a distinction between partial and total disqualification. The chief Statutes affecting old offices were the Place Bill of 1742, which affected junior T5 Geo. II. officials of the government offices, and Lord Rockingham's Act '^' ^^' of 1782 for the regulation of the civil list expenditure, which 22 Geo. III. abolished several offices connected with the royal household '^' and generally held by members of Parliament. The existence of over a hundred Statutes on the matter renders it hopeless to attempt an exhaustive summary of the 7ieivly created disgualify- ing offices. They have, however, been skilfully summarized into those connecied zvith the administratioi of Justice, such as Judges, Recorders (only for their own boroughs), Registrars, Stipendiary Magistrates ; those representing the Crown, as Colonial Governors, Court Officials such as were abolished in 1782, or subordinate members of the civil service; those concerned with the collection of revejiue or audit of public ac- counts ; and those connected zvith the administration of property for public objects, such as Charity and Land Commissioners and Commissioners of Woods and Forests.- Before passing - Anson, away from this subject two important exceptions should be ^" 93-97- noticed. To the old offices existing before October 1705, whose acceptance henceforth subjected their holder to re- election by his constituents, have been added a few others on a like tenure, such as the President of the Local Govern- ment Board created in 187 1. A more curious case is that of the Under Secretaryships of State, — parliamentary and, therefore, political offices changing with the ministry, — which are not regarded as disqualifying their holders from seats in Parliament, because they are not technically considered to be held of the Crown, l88 ENGLISH CONSTITUTIONAL HISTORY Among those connected with government a powerful class ^ Anson, ^as composed of great contractors} Their influence, employed Ersk'ine ^°' their own benefit and at the public expense, caused their May, entire disqualification in 1782 with a heavy penalty attached to '• 385-389- any violation of the Statute. But the disability was not held to apply to subscribers to government loans ; and indeed the most effectual blow dealt to the wasteful methods of raising money employed in the eighteenth century, came from the introduction of a system of close subscriptions which was the germ of the modern form of contracts by sealed tenders. This was largely employed by the younger Pitt, and consists of sealed offers of loans to the government deposited with the Governor of the Bank of England by a specified day, and from among which the Chancellor of the Exchequer selects tlie most favourable. (5) Legal. The fifth class of disqualifications for parliamentary honours may be described under the head of convictions for legal - Anson, offencesr Such, for example, are bankrupts who are members ^' •5" of either House. By two Acts of 181 2 and 1869, confirmed by the Bankruptcy Act of 1883, a member of the Commons in this condition does not forfeit his seat for one year, but meanwhile, unless the disqualification is removed in certain specified ways, he may not sit or vote. In 187 1 a similar dis- qualification was extended to members of the House of Lords, to whom, during the continuance of their bankruptcy, no writs of summons are issued, although they are not deprived of the privileges of peerage. The disqualification of bankruptcy can only be removed if, among other things, it can be shown not to have been due to misconduct. There are, however, other disqualifying legal offences, which involve an action of a criminal character. Such are corrupt practices at parlia- mentary elections, which were met from time to time by the disfranchisement of the borough concerned. The First Reform Act of 1832 momentarily increased such practices by sup- pressing the very boroughs which were free from bribery because they contained no voters to bribe. But individual examples had little deterring effect ; and from 1841 onwards, numerous legislative attempts were made to check the system. Their frequency (1842, 1852, 1854, 1858, 1868, 1883) bears witness rather perhaps to the magnitude of the stake involved THE HOUSE OF COMMONS — ITS FORM 1 89 than to the inefficacy of legislation in the matter. As far as the candidate is concerned, a conviction for such practices disqualifies him for ever from sitting for the place where the offence was committed, and for seven years from candidature elsewhere. The illegal and unauthorized act of an agent involves merely the first penaUy in a minor degree. More important perhaps, though happily not so general, is the dis- qualification attached to a/iy one atfaififed or adjudged guilty of treason or felony who has not undergone his term of punish- ment or received a pardon. In the reign of James I, in the case of Goodwin (an outlaw who, in defiance of the king's special writ forbidding the election of bankrupts and outlaws as knights of the shire, had been returned for Buckinghamshire in 1604), the Commons pleaded that even if he were an outlaw, a fact which they disputed, there were precedents for persons of that class as members of the House.^ The modern 1 Prothero, form of the question turns on the eligibility of a convicted 325-331- felon. Such were the cases of Smith O'Brien in 1849, of O' Donovan Rossa in 1870, oi John Mitchel in 1875, and of Michael Davitt m. 1882. In the case of Mitchel, the House of Commons declared him disqualified and the seat therefore vacant ; and on the re-election of Mitchel, the law courts not only confirmed the previous judgement of the Commons, but awarded the seat to his opponent on the ground that the votes given to Mitchel were, under the circumstances, simply thrown away. Until 1870 there seems, however, to have been some doubt, not so much as to the eligibility of felons who had served their sentences, as to the treatment of such persons by the House of Commons. It was always possible that the House would use its power to bring such persons within the list of those who should be expelled for unfitness. Such is its method of action in cases of conviction for a mis- demeanour which forms no legal disqualification and does not therefore vacate a seat. But an Act of that year put it beyond 33 & 34 possibility of doubt that convicted felons who had served their ^ "^^- *^- ^3- term or received a pardon, were legally eligible for seats in the " House of Commons. § 28. From the members we turn to their Constituents. The elec- And here, again, for the sake of clearness it will be well at to^'ate hi first to keep the shires and boroughs separate. In both cases 190 ENGLISH CONSTITUTIONAL HISTORY equally a great dividing line is made by the changes of the First Reform Act of 1832 : but the subject may fearlessly be carried across the dividing line in its two separate halves ; for, the gain will probably be greater than any corresponding loss from a failure to view our subject as a whole. The history of the electorate of the shire falls into three periods. The first of (i) Before these runs up to 1430 and is full of disputable points: the ■430- second brings us to 1832 and shows us an electoral body both simple and certain : the third period has for the present closed with the Representation of the People Act of 1884, and thus traces the growth of the franchise which we now enjoy. The history of the first period is sunmied u{) in the answer to the question, Whom did the Knights of the Shire originally ref resent ? It has been maintained by several constitutional writers of authority, that they were the representatives of (i) the minor tenants-in-chief of the Crown for whom Magna Carta (§ 14) required only a general summons ; who in consequence largely dropped out of attendance at the Commune Concilium ; and who were thus brought back by a complete representation to the National Council. Since there is no question that from the first the election of knights of the shire was made in the full county court, these writers are driven to maintain that tenants-in-chief of the. Crown were the only suitors of the court. As against this view it has been pointed out by Dr. Stubbs The mem- that, if this theory is correct, 'the assembly by which the bers of the ^ig^^tjQj-, ^y^g made would not be the full county court ; the Court. electors would be the tenants-in -chief, not the whole body of suitors ; and the new system, instead of being an expedient by which the co-operation of all elements of the people might be secured for common objects, would simply place the power of legislation and taxation in the hands of a body constituted ' S. C. H. on the principle of tenure.'^ Dr. Stubbs himself upholds the § 216. theory that the knights were the representatives of (2) the conummity of the shire as organized in the shire court. But what was this organized community ? It is comparatively easy to show that it did not consist merely of tenants-in-chief of the Crown. In the first place, it is to be remembered that such a composition would run directly counter to the avowedly anti-feudal policy of the Plantagenet kings, and that knights were elected in the shire courts for numerous local purposes Till'; HOUSE OF COMMONS — ITS FORM 19I long before they were called to a national assembly. More- over, all the documentary evidence goes to confirm this view. On the one side there are notices of the presence of sub- tenants in the shire courts ; on the other side the writs for the election of knights of the shire speak as plainly as words can speak to the participation of the whole shire court ; for in them the sheriff is directed to return two knights to Parliament who have been chosen 'in pleno comitatu, de assensu ejusdem comitatus, assensu et arbitrio hominum ejusdem comitatus.' Nor does the evidence seem much better for the view that the shire court contained an exhaustive representation of all the people in the shire — freeholders in person, and boroughs and land communities by representation. It seems much more probable that, whatever the original composition of the shire court may have been supposed to be, by the time that it was called upon to elect representatives to the National Assembly, the duty or burden of attendance had been indissolubly associated with the tenancy of particular acres within the shire. It had become a burden or a service by which a particular tenant held his land. The evidence for these two rival theories must be examined in connection with the history of the administration of justice. Here it should merely be noted that at the time when representative knights were summoned to Parliament, the court which elected them was probably a very small and rather miscellaneous assembly. The knights of the shire, then, were elected by the qualified Change in constituents of the county court. But the election must have '"sp^'bers of ,, , , . , ,. , , . , Shire Court, usually taken place m the ordmary monthly, or as it came to be, three-weekly court ; for only forty days were allowed between the issue of the writ and the meeting of the Parliament. Now, this court was attended only by those who had special business either as jury, in which case they would be freeholders, or as parties to a suit. All the more influential members, and with them apparently some of the smaller freeholders, were exempted from attendance unless specially summoned either to meet the king's justices or for the transaction of important kinds of business. At the same time it is noteworthy that the court seems to have been flooded with persons of less importance than the proper constituents, and that by the end of Edward Ill's reign such persons took part in the election. The pleniis comi- 192 ENGLISH CONSTITUTIONAL HISTORY 7 Hen. IV c. 15. Legislative limitation of electors and can- didates. 1372. 1376. 8 Hen. VI. c. 7. (2) Be- tween 1430 and 1832. tafi/s had in fact changed its character, and this was recognized by the first Act, passed in 1406, for the regulation of elections of knights of the shire ; for by this it was enacted, among other things, ' that all they that be there present (i.e. in the county court), as well suitors duly si/mmofted for the same cause as ot/iers, shall attend to the election of knights for the Parliament.' To this two riders were shortly added ; for, an Act of 1413 enjoined that the electors as well as the members should be resident in the shires and boroughs for which they voted and sat respectively ; while another of 1432 stipulated that, in the case of shire elections, the land which gave the vote should be situate in the county. These last were limiting statutes, and it was in the direction of limitation both for members and voters, for shires and boroughs alike, that the tide of legislation and royal predi- lection set. The Parliament of 1372 had successfully demanded the exclusion of sheriffs and lawyers as members. In 1376 the Good Parliament, following this example, sought to restrict the electorate in the shires, and so the power of the sheriffs, by a petition that knights of the shire might be chosen by common election of the better folk of the shires. To this the king replied that they should be elected by common assent of the whole county. It was perhaps the power placed in the hands of the sheriff, and at any rate the fear of riotous elections through the unwieldy and irresponsible character of the elec- toral bodies, which led to a change of tone on the part of the king and his advisers. Whatever the reason, the liberal pro- visions of 1406 were withdrawn by the celebrated Act of 143O, ' tlie first disfranchising Statute on record,' which narrowed the qualification of electors for knights of the shire not only to freeholders, but to such only as possessed land of the clear annual value of forty shillings. The same Act reafiirmed the condition of residence enacted in 141 3; and it was followed two years later by the Act, already quoted, which coupled with residence the property in respect of which the vote was given. Tlius the county franchise remained for just four hundred years, most unfortunate in its exclusion of not only probably a considerable number of the smaller freeholders — for forty shillings represented a substantial sum, which has been esti- mated at between ^30 and ^40 of present value — but also THE HOUSE OF COMMONS. — ITS FORM 1 93 of that more important class of emancipated villans and their representatives, who held land, often to a considerable amount, on copyhold or leasehold tenure, and who were quite capable of the responsibility of the vote. The effect was the same in kind as, though different in degree from that which would have been produced, had the original electorate consisted merely of tenants-in-chief of the Crown. But although a great political injustice was committed by this disfranchisement of a large and increasing number of those interested in land, it must be recognized that on the whole the small class of freeholders who alone exercised those political rights, were worthy of the trust which was for so long concentrated on them. We have already noticed the manner in which early writers spoke of the yeomen, whether small freeholders or substantial tenants.^ Even ' p. 53. in the midst of the general disappearance of small properties which helped to mark the political influence of the aristocracy after the Revolution of 1688, statesmen still pointed to the county constituencies, the forty-shilling freeholders, as the most uncorrupt part of the constitution. ' They represented public opinion,' it has been said, ' more faithfully than other electoral bodies ; and on many occasions had great weight in advancing a popular cause.' ^ Thus, despite the great and in many cases - Erskine overwhelming influence of the nobility, the more moderate ^^^y'' '• among the early schemes of parliamentary reform — those con- nected with the names of Chatham, Wilkes and the younger Pitt — suggested the disfranchisement of boroughs and the addition of the seats so gained to the representation of the counties. The third period in the history of the county electoral bodies (3) Since is ushered in by the Reform Ac/ 0/1832. By that Act the old ^^^^" property qualification of a forty-shilling freehold was itself Qualifica- restricted to occupation or to acquisition by methods other ''^^"^ °^ 1 • I • • property, than purchase, such as mhentance and marriage-settlement ; while to it were now added four other property and non- residential qualifications — a freehold for life, however acquired, of the annual value of j[,\o; copyhold or other land of the same value; and two sorts of leasehold, viz. of ;^io value for sixty years, and of ;!^5o value for twenty years. The only change made in these r^ualifications by the Act of 1867 was a reduction of the value of the freehold for life from ^10 to O 194 ENC.LISII CONSTITUTIONAL HISTORY of occu- pation. The elec- torate in the boroughs. ^5. The Act of 1884 followed suit with the copyhold and leasehold, reducing the former and the first of the leasehold qualifications similarly from ;!^io to ^5. Thus, besides the old forty-shilling freehold narrowed and defined and a lease- hold of ^50 for twenty years, all other property qualifications are by the present law reduced to an uniform rate of ;^5 value. But, besides adding to the property qualifications, the Act o?-aiion, we reach the chief agency in the narrowing of the borough electorates. The early charters to boroughs, especially in the case of trading towns, not infrequently placed their government in the hands of the freemen of the local merchant gild. Such freedom could, in process of time, be acquired in various ways differing in almost each individual town. They have been summarized as birth, marriage with the daughter or widow of a freeman, apprenticeship or servitude, purchase, or even gift.'' If it is Tiifi House of Commons. — its form 199' possible to select in a case where the whole system was so baseless in reason and corrupt in action, the chief evils of this tenure were that, firstly, together with the rights the freeman did not necessarily incur liabilities such as tenure, residence or payment of local taxes ; and secondly, in many cases the Corporation had the power of conferring freedom at its pleasure, and used its licence to create freemen for the pur- pose of carrying parliamentary elections. These were the ' fagot ' or manufactured votes which were untouched in the boroughs until 1832, although in the analogous case of specially created forty-shilling freehold in the counties, a legislative attempt was made to check the manufacture both under William III and under Anne. The last qualification, that of {d) Corporate Office^ was entirely the creation of Tudor charters, often fortified in the eighteenth century by interested resolutions of the oligarchical House of Commons. For, the inhabitants did not in all cases tamely acquiesce in an interpretation of the charter, which left them at the mercy of a self-elected governing body. But the prevailing influences were wholly in the direction of restricting the electoral body, and in many instances the continued apathy of the electors permitted of and actually encouraged the direct nomination of the members by the lord of the manor or some local magnate. It will now be possible to appreciate the full strength of Hindrances those influences which co-operated to make the representation to freedom r 1 1 11 1 • 1 • 1 11 of borough of the boroughs the pretence which it became m the three elections. centuries preceding the Reform Bill. The narrow constituencies gave every facility either for (i) simple nommation of their members, or for the (ii) influence of the voters by direct bribes. But there still remained a few towns where the electoral body, being constructed on a liberal basis, was too numerous to be dealt with in either of these methods. In many such, especially seaport and trading places, it was possible to secure the election of candidates of the government by the (iii) multiplication of revenue officers to a number greater than that of the free con- stituency. The ministry of Lord Nortli was said to have created j no less than 12,000 of these officers, whose entire number ^/j/. xxii. was calculated at a figure between 40,000 and 60,000 out i337. i345' of an electorate of 300,000 persons.' Although it is a ^""^'° y bad precedent to disqualify any particular class of men iv. 218. 200 ENGLISH CONSTITUTIONAL HISTORY from the exercise of their rights of citizenship, and although such disfranchisement was perhaps the most serious blow that could have been inflicted on government influence at elections, yet a gradually accumulating public opinion imperatively de- manded the sacrifice; and from 1768 onwards, bills for the purpose were constantly introduced until the measure was finally accomplished by Lord Rockingham's Act of 1782, which removed from the electorate all officers connected with 1 Erskine the collection of customs and excise.^ The concession of a May, i. popular franchise throughout the country made it safe to 348-349- restore the right in 1868 to those from whom, on Burke's bold principle of the occasional purifying effect of disfranchise- ment, it had been so justly taken. There were a few great cities also where the electorate was too numerous to be over- borne even by the wholesale creation of government votes. But in these the popular candidate, even if successful, was (iv) ruined by the expenses of a contest in which the poll 7vas kept open for forty days with the necessary accompaniments of feasting, intimidation and continual disorder. The first limita- tion to this system resulted from the scandals connected with the Westminster election in 1784. At the election which confirmed George Ill's arbitrary dismissal of the Coalition Ministry, Charles James Fox was returned for Westminster by a majority of 236 over the Court candidate. But the High Bailiff, who was the returning officer, withheld his return and began a scrutiny into the votes, thus restraining the successful candidate from taking his seat in Parliament. Fox was returned for another constituency ; but for a long time the High Bailiffs conduct was defended by Pitt's majority, who refused to order that official to make an immediate return. The iniquity of the whole proceeding at length brought the House of Commons not only to refuse to ui)hold Pitt in his ' ungenerous conduct,' but to 0^8^° * seek a remedy by an enactment of 1785 which limited the poll - Erskine to fifteen days and closed a scrutiny six days before the day May, fixed for the meeting of Parliament.-' In 1853 the poll was I eik°v^^'^ further reduced to a single day, and the writs for borough elec- V. 56-60. ticns were to be directed to'the returning officers of boroughs, =• Erskine instead of to the sheriff of the county, as hitherto ; and I'lnally J^'^y' in 1872, the Ballot Act gave legal recognition to an influential iii.'*454!'^^' movement in favour of secret voting.'' Klecti(jns l)oth in TllK HOUSE OF COMMONS. — ITS FORM 201 counties and in boroughs were regulated in further details by subsequent legislation, which may be gleaned from any modern manual of election law. Wc return to the c/ianges ivroiight in the bflrough constituencies by the three Reform Acts of the present century. The Reform Act 0/1822, while preserving all individ/ui/ vested rights of the existing electorate, made a clean sweep of the old anomalous franchises. The rights of one class, however, were saved — those of the freemen of such chartered towns as had hitherto exercised the franchise, though even here the modes of acquiring freedom were limited to birth and servitude, with the added qualification of residence in or within seven miles of the borough.^ With these restrictions the privilege of freemen has ' Anson, survived the reforming fervour of 1867 and 1884. The new qualification introduced by the Bill in the place of those abolished, was an uniform franchise based upon occupation of premises of the annual value of ;!^io. To this single qualifi- cation the Act (-y 1867 added for the boroughs one based upon residence, whether in the shape of a household franchise con- ditional on payment of rates or of a lodger franchise for unfurnished rooms of the annual value of jQ'i.o. These quali- fications are untouched, except in details, by the Act of 1884, whose great work it was to extend the qualification of resi- dence to the counties and thereby finally to assimilate the county and borough franchise.- '\ ^''^"^• § 30. From the foregoing account it will have been ^bun- 1^^^^°^^^"^ dantly plain that, however clearly Parliament may at times have expressed the prevailing opinion of the country, it was Outside not until 1832 that it could exercise any steady pressure in influences favour of a policy acceptable to the people at large, in opi)osition liament. to the wishes either of the king or of the narrow class whi.ch had acquired the franchise. From its very earliest existence, however, there were influences at work, which, through the maintenance of the symbols and language of popular govern- ment, prevented Parliament from becoming merely the sporting ground of a close oligarchy. Thus, while in theory elections were free, the voice of the country was expressed by a small minority of the people and was constantly overborne by the interests of some lew great individuals or of the Crown. Again, by the theory of the constitution, tlie speeches and votes of 202 ENGLISH CONSTITUTIONAL HISTORY Influence of the Sheriff. Reasons for its exercise. (Desire to escape re- presenta- tion.) ' .V. C. II. §217. individual members were free from outside influence ; but in practice they were made and given at the bidding of a few influential persons who had it in their power to make or blast the reputation and the fortunes of the ambitious politician. Circumstances kept apart the theory and the practice of parlia- mentary government for five hundred years. It is important to examine the working of those influences which, from the first arrangement of Parliament into two Houses down to the eighteenth century, brought about so effectual a separation. It will then be possible to estimate the measures which, during the last century and a quarter, have been either carried out or suggested for realizing the harmony between Parliament and the people whom, in theory at least, the House of Commons has always represented. The earliest and, considering its importance, the most short- lived of such influences seems to have been that exercised on elections by the Sheriff. Until 1853 the writs were addressed to the sheriff of each shire, enjoining on him to procure the election of two knights for his shire and two citizens or burgesses for every city or borough within the limits of his shire. The whole conduct of the election, therefore, lay in the hands of the sheriff whose sinister designs, where he entertained them, would be rendered com- paratively easy by the extreme unwillingness of persons to become candidates for Partia?nent. The reasons of this reluct- ance are not far to seek. The summons to Parliament was equivalent to a demand for the grant of taxes ; and every one would be unwilling to face the reproaches of his neighbours for what might be considered undue compliance with the royal demands. And when to this opportunity of incurring popular odium were added the unknown terrors of a distant journey and the inconvenience of absence from a farm or a business, it can be well understood why, in the words of Dr. Stubbs, 'the office of representative was not coveted, and we can imagine cases in which the sheriff would have to nominate and compel the service of an unwilling member.' ' Nor were the constituencies any more eager to be represented. For, the members were entitled for their services to wages at the rate of four shillings a day for the knights, and two shillings for the burgesses during the parliamentary session, and to a THE HOUSE OF COMMONS. — ITS FORM 203 sum for journey money which was usually fixed in the assembly which elected them. The rate of wages became a settled custom as early as the reign of Edward II, and the sum was collected by the sheriff from all those entitled to vote, on the authority of royal writs de expensis levandis which were issued to the members on the last day of the session. The right, then, to the receipt of wages rested on the Common law, and the fixed sum, though usual, does not seem to have been compulsory. At any rate, although in the case of some few large towns, such as London in 1296 and York in 1483, an increase of wages was sometimes promised, there are other instances, as at Cambridge in 1427, where the constituents bargained with their members to take less.' But under Henry VIII the usual rate was made ' S. C. H. a matter of legislative grant in the case of the newly enfran- §§ 424 and chised shires and boroughs of Monmouth and Wales. It was ^, V. ° 35 Hen. not long, however, before electors took advantage of the vill. c. 11. increased importance of a seat in Parliament to agree that candidates should serve them for nothing. Although in isolated cases payment was demanded and obtained, the custom gradually died away. The last known instance is in 1681, when the Chancellor, Lord Nottingham, gave judge- '681. ment in favour of a member for Harwich who sued his constituents for his wages. Thus the payment of members is a lapsed constitutional right ; and when it was moved in the House of Commons in 1870 'to restore the ancient consti- tutional practice of payment of members,' whatever we may think of the wisdom of the motion, the form was strictly correct. This desire to escape representation and all its liabilities was common to the inhabitants of the shires and boroughs alike, but it was based on different grounds. In the case of the shires there was no question of the escape of the whole community from the necessity of making an election. The number of the shires had been fixed long before there was any thought of repre- sentation in Parliament; and although certain shires might and did put off the duty of sending members till a comparatively late period, there was no question of the liability of those which had once received the writs. Hence the claim of exemption in the (Method of shires came in the shape of the refusal of certain classes to con- escaping tribute to the 7va^cs of the memlwrs on the plea that they were [^T'^Tf?Up" not entitled to take [lart in the election. There were three such Shires.) 204 ENGLISH CONSTITUTIONAL HISTORY classes — (a) mesne or feudal subtenants, on the plea that the knights were supposed to represent the tenants-in-chief alone, a theory which has already been shown to have no historical foundation apart from the interest of those who urged it ; (l)) tenants in ancient dejnesne of the Crown, to whom, on the ground that the king still had the power of taking tallage without leave of Parliament, it seems to have been occasionally allowed ; and {c) the socage tenants of the county of Kent, who ultimately obtained their exemption. For, when the Commons attempted to counteract such demands by a petition that the expenses should be levied from all the ' communitates ' of the shire, the Crown usually answered by a decision in favour of ' S. C. H. the local custom.' It was this spirit which animated Ed- § 216. ward III in his answer to the petition of the Good Parliament in 1376, that the knights of the shire might be chosen by common election of the better folk of the shire and not merely - Ibid. nominated by the sheriff. - §419- But such a petition discloses the extent of the mischief Methods of already at work ; for, the unwillingness of candidates and Its exercise electors alike, together with the relaxation of the duty of upon the ' b .... Shires. attendance at the local courts, left the sheriff practically master of the situation. He seems to have tiscd his power in various 7vays. Thus sometimes he would summo)i no one especially for the election or would restrict the notice to a few friends 7 Hen. IV. ^^'hom he could trust. This was aimed at by an Act of 1406, c. 15. which, while directing that the election should take place ' at the next county court to be holden after the delivery of the writ,' and should be made by all who were present, whether specially summoned or not, required that the signatures and seals of the electors should be placed upon the indenture or writing which always bore the names of the elected members and was joined on to and returned with the writ. Moreover, these were no longer to go, as heretofore, to Parliament itself, but into the royal Chancery whence the writs were issued. But the provision as to signatures and seals could never have been complied with; for, the indentures that have been preserved in no case contain more than forty names, which were pnjbably those of the persons to whom special summonses had been issued or who had seals to aflix, acting as a kind of committee for the rest of the electors. Occasionally, perhaps, THE HOUSE OF COMMONS. — ITS FORM 205 it was a mere tri -k on ihe part of the sheriff and his friends whereby they compHed with the statute without letting go of the power. And this supposition seems borne out by the fact that the returns of the borough members are often found signed and sealed with the same names as those of the knights of the shire. ^ ' .V. C. H. A second method to which the sheriff micjht resort for the ^^ ^20- .421. return of his own nominees would be the deliberate substitution of other /lames in the returns for those of the persons who had been properly elected. This could only be met by a petition to the king, the Council or Parliament itself, from a number of those who had made the election. Thus, as a strong though indirect testimony to such action on the part of the sheriff may be cited the circumstances of the Huntingdonshire election in 1450. The indenture remains with the names of five persons attached, together with a letter signed by 124 freeholders who, fearing that the sheriff intended to make a false return, sent a memorial in which they stated that they, together with 300 more good commoners of the shire, had voted for two certain persons.'- In this special instance no trick had been attempted ; - .S'. C. H. but the terms of the memorial are as striking an illustration as § 42i, any direct instance of such use of the sheriff's power. But fj-om the sheriff had still another method of action ; for, taking I'rynne, advantage of the heterogeneous character of the court and ¥>' "'" • • 1 56- 159. the abstention of all members of importance, he would force through his oivii candidate by the appearance of compliance with the necessary forms. For some considerable period the election was made merely by a show of hands, and it was not difficult in a crowded and tumultuous assembly to make the decision go in the way required.'' ■'■ ibid. § 423 Legislative attempts to check returns made through these Attempts means took two forms. In the first place, the action of the sheriff to check it. was subjected to supervision. In 1410 it was enacted that the n Hen. IV. Judges of Assize should incjuire into any wrongly made returns, c. i. and the sheriff, if convicted of breach of the law, was liable to a fine of ;^ioo ; while the members unduly returned forfeited their wages. The second method of curtailing the sheriff's power in this matter was by limitations on the qualifications both of electors and of candidates. Thus, by an Act of 1413 tt y the knights must reside within the shire for which they were c. i. ' 206 ENGLISH CONSTITUTIONAL HISTORY 23 Hen, .VI, c. 14. 10 Hen, , VI, c. 2. 8 Hen. \1. c. 7. Influence of the sheriff upon the boroughs. (Methods of escaping representa- tion in the boroughs.) Methods of its exercise. elected ; while an Act of 1445 restricted the persons chosen to the class of knights or esquires. In the case of the electors, the Act of 1413 required that the electors should also be residents ; while in 1432 the freehold in respect of which they voted must be situated in the shire for which they gave their vote. Two years before had been enacted the important statute which limited the electorate to the forty-shilling free- holders. It does not, however, seem to have had any effect on the class of persons either electing or elected, though doubtless it did much to check the particular methods of the sheriff's action which had helped to call it forth. Nay further, the small number of names affixed to the indentures may witness to the influence exercised on elections by the local gentry, in whom occasionally the sheriffs must have found formidable rivals. Even more overpowering must have been the inter- ference of some great local noble. Certainly in the fifteenth century the local government or, to speak more correctly, the local means of control, was almost entirely in the hands of the great nobility, who either through corruption or intimida- tion returned their candidates to Parliament and procured immunity from justice for their own lawless followers. In the face of such obstacles the sheriffs must have been powerless. The connection of the sheriff with the borough elections calls for separate treatment. The unwillingness of the boroughs to be represented in Parliament came from the fact that such representation involved the payment of special wages and con- tribution to the tenth-and-fifteenth at a slightly higher pro- portion than that exacted from the inhabitants of the shires. The towns tried to escape these liabilities in every way. The plea put out by some few that they were not in ancient demesne was, as we have seen, promptly quashed. It was not easy, though not altogether impossible, to get emancipation by charter from the Crown. A simpler method was to come to an understanding with the sheriff whereby a town dropped out of representation altogether. Thus it came about that many important towns, such as Birmingham and Leeds, had no representation until 1832, although they were both boroughs in the fourteenth century. The actual method of election placed an enormous power in the hands of the sheriff. The writs for the election of TIIK MOUSE OF COMMONS. — ITS FORM 20/ burgesses were addressed to him, and left in his hands en- tirely the choice of the boroughs which should be represented ; for he was supposed to coninumicate the writs to such towns in his shire as, by reason of their wealth and position as corporate bodies, were worthy of this extra consideration, and to add his own 'precept' or notice to elect. Now, the sheriff might otnit to send his precept to a borough. Such an omission was aimed at by an Act of 1382 which forbade the sheriff to 1382. omit any city or borough which had been wont to send members,' and, as we have seen, it arrested the downward ' S. C. H. progress in point of numbers of the boroughs represented. § ^96. But, notwithstanding this, it was found necessary by the Act of 1445 to threaten penalties to the sheriff or the mayor to '445- whose fault the absence of representatives from a borough might be due. But if the sheriff's precept was sent and com- plied with, the election would take place under the conduct of the borough magistrates to whom the precept would be ad- dressed. Thus the actual election would ordinarily be made in the borough court, and the names of the members chosen would be announced to the shire court by the messengers or deputies of the magistrates. Finally, the names of all the representatives from the cities and boroughs which had re- sponded to the sheriff's precept, were placed upon the writ together with the names of the two knights of the .shire, and the writ was returned to be verified in Parliament itself or, after 1406, by Chancery. Technically, then, the election of burgesses seems also to have been carried out in the shire court, and the sheriff had an even better chance than in the case of the shire members, of interpolating in the writs the names of others than those of the candidates actually elected. The reality of this evil appears in a petition of 1384 from the burghers of Shaftesbury, who demand of Parliament a remedy for the sheriff's action. A more general testimony to the pre- valence of this trick is a petition presented by the House of Commons to the king in 1436 against the interference of the sheriff in borough elections, especially in the matter of return- - .S". C. H. insr the names of members not elected.- §§421- Some slight check must have been exercised upon the ^"^g„, ^s sheriff's power of choice by the application to the boroughs to check it. of the qualification of residence for their representatives. 14 13. 208 ENGLISH CONSTITUTIONAL HISTORY This seems at first to liave been generally and rigorously enforced, and was only evaded when a seat in Parliament became a post of honour, by the admission of the candidate to the free burghership of the town which he sought to repre- 23 Hen. \T. sent. Further, in 1444 the boroughs were also included in ^- '5- the Act of 1406, which required that f/ie electors shou/d add their names and seals in an indenture which should be tacked to the writ. But it must have been the netv charters of in- corporation which for the time dealt an effectual blow at all outside influence ; for they concentrated the franchise or duty of election in the hands of a small and select body, which at first seems to have guarded its new privilege with much care. To the example of the borough of ^^'estbury in 157 i may be added those of Cardigan and Shrewsbury in 1604; but it appears likely that in these cases the fraudulent dealings ' originated in nothing more important than personal ambition ' Protliero, and local intrigue.^ Thus the creation of ' rotten boroughs ' lxiv.^132, ^y the Tudors is as much a testimony to the integrity of the ■'^'" new electoral bodies in the boroughs as it is a proof that the Crown did not need to try conclusions with the older and' long established municipalities which sent members to Par- liament. Influence §31- If the influence of the sheriff waned, that of the of the Crown increased and absorbed any powers that remained to the sheriff in the matter of parliamentary elections. For, the action of the Crown upon Parliament was by no means confined to the manipulation of elections. It generally began before the elections were held and continued throughout the whole session. But the methods employed by the Crown changed with circumstances. Within our parliamentary life there have been three periods in which the sovereign definitely used his powers to obtain a representation of the people which would at the same time be not unfavourable to the claims and exercise of the royal prerogative. There are two inter- mediate periods which in this connection we need only men- / 1 I tion in order to dismiss. From the accession of the Yorkist 1460-15341 dynasty to the beginning of the Reformation, the Crown ,; made a bold and fairly successful attempt to dispense with Parliaments altogether ; while from the accession of the Stuarts 1603-1642. to the outbreak of the Great Rebellion the two reigning THE HOUSE OF COMMONS. — ITS FORM 209 kings successively took their stand on the prerogative and reUed on it to overawe their Parliaments into an attitude of submission and assent. The three periods of influence may be roughly described as those of the Lancastrians, the Tudors and the Hanoverians. During these, as they will be more particularly defined, the efforts of the Crown to procure an artificial harmony with the House of Commons must be separately noted. The attempts of the kings to control the composition of Methods of the House of Commons seem to have begun almost from ^^'^ ^'^^"' ° tagcnets the moment when there was a House of Commons to con- and Lan- trol. There is no need to estimate the relative influence ofcastrians. the Crown and of the sheriff, or even, what might be of greater practical importance, that of the Crown in competition with the great nobility. In some instances the Crown made use of the sheriffs for the furtherance of its own objects : but in general its influence may be said to have been exercised by methods which were at its disposal alone. These methods may be summarized as attempts to alter (a) the outward form and {/>) the internal animating spirit of the House of Commons. Attempts of the first kind took one of two forms. Constitutional custom based on original convenience ulti- mately fixed the number of popular representatives at two respectively for each shire and borough, summoned in both cases through the sheriffs to one single assembly • but, for some time after the summons of what succeeding ages have regarded as the Model Parliament in 1295, the kings did not hesitate to (i) a/fer the numbers and details of election and meeting. An examination of the instances in which the ex- ample of 1295 was departed from, would show how far, at any period in its development, the parliamentary system was considered to be binding. Indeed, the name ' Magnum Concilium ' is sometimes given by constitutional writers to all assemblies called after 1295, which did not contain the proper constituents of a statutable Parliament summoned in a proper way. But, strictly speaking, the Magnum Concilium was the old Commune Concilium subsisting as a Council of Magnates, which, even as late as 1640, the king reserved to himself the right of specially consulting. Such deviations as are now under consideration might more cor- P 2IO ENGLISH CONSTITUTIONAL HISTORY rectly be described as Magna Concilia reinforced by repre- sentatives of the popular constituencies. They are found generally in one of three forms. Sometimes, in addition to the Lords, the king summoned only one knight from each shire: at other times, as in 1352 and 1353, the mayors of certain towns would be directed to return one member for the borough ; while the outward form of Parliament would almost entirely disappear in the separation of the proper constituent elements into several bodies meeting at different places. But since the constitutional principle ultimately triumphed, it may be safely asserted that these changes only show that the king dreaded hearing the national complaints, not that he wished to alter the essential features of the national assembly. With a similar object of influencing the outward form of the House of Commons, the king occasionally {2\shortened the 1 S. C. H. orthodox time allowed for the cotiduct of elections} ^TEe~uiual §4"- allowance of forty days between the issue of the Avrit and its return, dates from Magna Carta. But it was sometimes to the, advantage of the local authority acting on the king's behalf, that this time should be shortened. Thus, in 1327 the notice was liniited to thirty-five days, in 1352 to twenty-eight days; while, as an extreme instance, the first Parliament summoned by Henry IV in 1399 had only seven days' notice, and con- tained, as it was intended to do, the same members -as its predecessor. Under the head of attempts to influence the spirit of the Commons come, firstly, some of the (1) alterations found - Ibid. from time to time in the writs of summons.- Interpolations § 419' in this spirit were made with two objects ; for they were intended, positively, to secure the election of certain classes such as the ' belted knights " already mentioned, and nega- tively, to exclude certain classes whose absence for some reason was specially desired. We have seen that a peti- tion of the Commons themselves was taken for the basis of an ordinance in 1372 excluding both sheriffs and lawyers from eligibility for the House of ("ommons. But in 1350 it was by a clause in the writs of summons issued to the sheriffs that directions were given that the persons chosen should not be pleaders and mainlainers of cjuarrels or men who lived THE HOUSE OF COMMONS. — ITS FORM 211 by such gains ; while in 1387 pubhc opinion obHged Richard II to withdraw, as contrary to the ancient form and to the Uber- ties of the Lords and Commons, the writs which, with the object of shutting out his enemies from Parliament, directed the election of persons ' in modernis debatis magis indifferentes,' i.e. who had not taken part in the recent quarrels. Nor are parallel instances altogether wanting under later sovereigns.^ 1 Hallam But on the whole the writs remained substantially the same i- 46- until the form in use at present was substituted by the Ballot 280 441.' Act of 1872.2 2 Anson, i. But if any alteration of the terms of the writ was regarded 55-56. as unconstitutional, it may have been possible sometimes for a powerful king or minister to (2) use the infiiience of the sheriffs and even of the great «6'^///^"to~~secure~tlTe'''feturn of a Tavoufable House of Commons. In 1377 John of Gaunt procured the election of a 'packed' House of Commons which reversed all the work of the Good Parliament of the previous year. In 1397 the exclamation of the condemned Earl of Arundel, ' the faithful commons are not here,' points to the same conclusion ; while in 1399, among the charges against Richard II was that of tam.pering with the elections by direct- ing the sheriffs to return certain persons whom he named." •" .S". C. H. It will be seen that, all the cited mstances of undue royal § ^96- influence over Parliament fall within the reigns of Edward III or his grandson. Not that the royal influence entirely ceased under the Lancastrians ; but the peculiar position of that dynasty, with its purely parliamentary title, caused the kings to be chary of any action likely to provoke popular murmurs ; while their constitutional endeavours only left the way all the more clear both for that manipulation by the sheriff wliich was met by a series of legislative acts, and for that influence of the great nobility, which only collapsed with their own destruc- tion in the Wars of the Roses. The Tudors renewed the Methods of regular summons of Parliament because they were i)ossessed '^'^ Tudors. of means by w^iich both Lords and Comtnons should remain under royal control. The whole House of Lords could be restrained by the addition of a sufficient number of royal nominees ; and individual peers could be punished for re- fractory conduct by exclusion from the royal presence. More- over, the Crown still occasionally fell back upon its old policy 212 ENGLISH CONSTITUTIONAL HISTORY of ( I ) dispensing with a Parliaj7ient for years together. Thus when, despite Elizabeth's prohibition, the Commons insisted on discussing the questions of her marriage and the settlement of the succession, she punished them by omitting to summon 1566-1571. Parliament for five years ; and again, after 1588, when the disappearance of the long-threatened danger from abroad made the Commons still more demonstrative, Parliament 1589, was called only four times in the remaining fifteen years of '593. Elizabeth's reign. At the same time, when a Parliament was 1601! held, the Tudors neglected no means of procuring one favour- able to the royal wishes. All the Tudor sovereigns courted the prosperous commercial classes by largely increasing the borough representation in the House of Commons. But it was with the object of securing a majority of votes in that House that at any rate the last three Tudors used the royal prerogative of granting charters to (2) call into existence a number of small boroughs, later well designated by the epithet 'rotten,' whose only title to special representation was their complete subservience to the royal influence. Somewhat similar motives may have dictated the policy of (3) narro7ving, by the same medium of a royal charter, the constituencies of the boroughs ; though possibly in the end these swelled the influence of the local landowners rather than of the Crown itself. At any rate, where the king could not nominate he could influence, and the Council under Edward VI had no compunction about sending a circular letter to the sheriffs, now largely removed from the overshadowing influence of the local nobility, ordering them to see that the shires and even the boroughs elected men of learning and wisdom such as should be nominated by the Council. But, although the rival influence of the nobility may now have been exercised rather at the bidding of the Crown than on its own behalf, it was not yet extinct. Thus, in the reign of Mary the Earl of Sussex wrote to the electors of ' Ilallam, Norfolk and Yarmouth ordering them to vote for his nominees ; ' 1. 46. while in 157 1 the removal of the qualification of residence for burgesses was rejected on the ground that, in the event of such 2 Ibid. i. repeal, ' Lords' letters would henceforth bear all the sway.' - 266-268. ijut the influence of the Crown did not cease on the threshold of Parliament. The Speaker, whose office only seems to date definitely from 1377, was the nominee of the Commons, THE HOUSE OF COMMONS. — ITS FORM 21 3 though Iiis election recjuired confirmation by the Crown. Such an ofificial was necessary, not only as chairman of the House, but also as its spokesman in communications with the sovereign. Before the Lancastrian epoch the holders of this office seem to have been generally the stewards or dependants of one or other of the great lords whose factions divided the court. But under the constitutional rule of the Lancastrians, to judge from the long-winded homilies which they inflicted on the king, they must have been really repre- sentative of the House of Commons. The Speaker was the medium of communication not only between the Commons and the Crown, but also between the Crown and the Commons ; and it became his business to explain to the House all measures which the Crown wished to lay before the Commons. So important a means of influence was not to be lost, and ac- cordingly we find that the Tudors practically secured for the king the (4) fio?ninatio?t of tlie Speaker with the result that ' the Speaker, instead of being the defender of the hberties of the House, had often to reduce it to an order that meant obsequious reticence or sullen submission.'^ Even Sir Thomas ^ Stubbs, More, as Speaker in the Parliament of i=;2 3, found it difficult ^f"^f." "' to be anythmg except the subservient agent of the kmg and o^ and Mod. Wolsey, and it may well be imagined how far below his level Hist. 272. the majority of his successors would be found in efforts to maintain the independence of the House of Commons. But as the Commons grew in strength, the influence of the Speaker was not found sufficient ; and apart from the persuasive efforts of the Star Chamber, Elizabeth considered it necessary to ensure the election of an important royal official, the (5) Secretary of State, as a member of the Commons. The fact that this post was held successively by Sir William Cecil, afterwards Lord Burleigh, and by his son, is sufficient evidence of the im- portance attached by the queen to this method of influencing the House. But, besides these indirect methods of coercing Parlia- ment, the Crown was always at liberty to (6) fall back upon the prerogative, to issue proclamations, or by use of the dispensing power practically to annul the parliamentary statutes, to resort to arbitrary methods of raising supplies which should make it less dependent on a grant from the House of Commons, to 214 ENGLISH CONSTITUTIONAL IIISTOKV Causes of the Stuart failure to control Parlia- ment. ' Prolhero, 280. single out for punishment members guilty of offensive speeches, or in the last resort to forego the summons of Parliament altogether. But intimidation, amounting to the direct use of force, was a weapon used most carefully, nay, sparingly, by the Tudors in their relations with the Commons. Henry VIII based some of his most unconstitutional actions on the sanction of Parliament ; the Council of Edward VI consented to the repeal of more than one of the harsh measures enacted under his predecessor ; Mary only obtained her desired restoration to communion with Rome by a sacrifice which almost robbed it of all meaning ; Elizabeth, in continual conflict with the Commons and not abating one jot her own rights, yet more than once gave way to the plainly expressed feeling of the House in a manner that served only to endear her all the more to the hearts of her people. But the Stuarts brought with them high notions of the pre- rogative which led them to regard constitutional forms with contempt. Thus while, in the matter of actual methods, the Stuarts were perhaps mere imitators of their predecessors and not the innovators that they are generally given the credit, or rather discredit, of having been, yet they were for ever challenging Parliament by a definition of the rights of the Crown, and thus provoked counter-definitions as to the limits of a power whose merit it is that it has never been reduced to definition. Thus the indirect expedients of the Tudors for keeping Parliament in friendly relations with the Crown, practically fell into entire disuse. The wholesale creation of * rotten boroughs ' almost ceased with the accession of the Stuarts ; and by far the larger number of those which were created or revived under James I and Charles I owed their privilege to an order of the House of Commons for the issue of a writ on their behalf Again, all actual interference with the elections or the issue of directions as to who should be elected seems, with one exception,^ to have ceased. James I and his son seemed to prefer to meet their Parlia- ments face to face or not at all. But the resolute attitude of the House from the very first convinced the Stuarts of the necessity of occasionally resorting to other means than mere force for making Parliament submissive. But even here, in the measures which they adopted for this purpose, they pitched THE HOUSE OE COMMONS. — ITS EORM 21 5 upon methods which the Tudors would have scorned. In 1614 James, at the advice of Bacon, made an attempt to form within the Commons a party of persons devoted to the interests of the king. But these ' Undertakers,' as they were called, met with complete failure, and the ' Addled ' Parliament, as it came to be called, broke up without having enacted a single legislative measure.' No happier was the attempt of Charles I in 1626. 1 Gardiner By a parliamentary ordinance issued in answer to a petition ii- 228 et of the (Commons in 1372, sheriffs as returning officers had been ^^^' declared ineligible as members for their own shires. Charles took advantage of this ; and, by nominating some of the leading members of the opposition as sheriffs, he hoped to stave off criticism in his second Parliament." But the natural hostility " .^'^^^• of the opposition was only increased by this obvious attempt ^'' to remove its leaders. Nor did the new kings even take the trouble to see that their views were adequately laid before the Commons ; for, abandoning the salutary plan of Elizabeth, they placed in the House as exponents of the royal will second-rate politicians and mere mouthpieces of the ministers who in reality directed the royal policy. It is no wonder, then, that the means which these kings preferred were such as overrode and ultimately abolished all constitutional forms whatsoever, or that Parliament ultimately dealt out to them that measure of justice which the kings would fain have inflicted on the Commons. The Restoration brought back a Parliament much more Methods truly loyal to the Crown than any since the Tudor times, and of 'he later Charles II was restored unconditionally to the prerogatives piano- enjoyed by his ancestors. But the Rebellion lay between him verians. and the methods employed by his father and grandfather for the maintenance of those prerogatives. When once the fervour of their early loyalty had spent itself, he was forced to have recourse to subtler devices for keeping a hold upon his Parlia- ments. And yet the old methods did not die without a struggle. In 1674 the city and county of Durham had been summoned for the first time to take their place in the repre- sentative system of the country. In 1681 ('harles, not to be 1681. outdone by Parliament, called out a prerogative which had been for some little while in abeyance, and by royal charter enfranchised the loyal town of Newark; but the attitude of 2l6 ENGLISH CONSTITUTIOXAL HISTORY the Commons warned him not to repeat the act. Again, both he and his brother made that assault upon the existing charters of the boroughs which proved ' the last form of violent external measures used by the king to aftect the representation.' Charles took care also that the Crown should be adequately represented in the House of Commons, and he even lent himself to the formation of a group of members within the House for the maintenance of the royal influence and the distribution of its favours. But all these are as nothing compared with that gigantic system of parliamoitary corrupiio7i which arose under Charles U when the loyal feeling of Parliament began to wane. The Revolution of 1688 practically removed from the power of the Crown all means of direct and open influence on the Commons, while it left the Commons a close oligarchy with increased power and no correspondingly increased responsi- bilities. The only means of influence were indirect, and the low political morality of the time dictated what form they should take. For more than a century this gross system lay like a blight upon the constitution, affecting even the keen party contest of the reigns of William HI and Anne, but flourishing especially amid the party intrigue and selfish scramble for office which characterize the early years of the Hanoverian dynasty. Such corruption was protean in its shapes ; but it is both possible and instructive to discriminate between the chief forms which it assumed. The most gross method was (a) the direct payment of sums of money in return for votes given either at the polling booth by electors or by members in Parliament. This was chiefly rendered possible by the general state of the finances and especially by the fact that there was a portion of the royal income over which Parliament had no control and which was therefore specially adapted for use as secret service money. In the actual traffic over the rotten boroughs the Crown found formidable rivals in the great nobility ; but yet an estimate made in 1793 shows that sixteen members of the Commons were the direct nominees of the Crown, while the secret corre- ' Erskine spondence of George HI and his ministers affords abundant May, i. proof of the large sums spent on the direct bribery of ' free ^'*'' and independent' voters at the hustings.' The easier method, i. 325-327, however, was to obtain by some heavy bribe, probably other THE HOUSE OE COMMONS. — ITS EORM 217 than pecuniary, the support of some of the great borough- quoting mongers; while tlie ministers of the Crown kept the revenues'^*"" at their disposal for the purchase of actual votes in T'arliament. Qg„ jij" A more ])ermanent influence was obtained by {/>) the forma- with Lord tion of a ministerial party within the House of (Commons by "^ the judicious, if wholesale, distribution of offices and pensions. Of the gradual disqualification of office-holders for seats in the House of Commons mention has already been made.' It ' p. 187. will be sufficient here to summarize the results of the various legislative efforts in this direction." At the time of the Place 2 Erskine Bill of 1742, 200 members of the House of Commons were May, i. said to hold Crown appointments of various kinds. That ^ 9-375- Act only affected the holders of minor offices; but none the 1742. less it had a salutary effect in checking a pernicious means of royal influence. Still, many placemen remained in the House ; nor was their influence disguised. The party of ' King's Friends ' succeeded where James I's Undertakers had met with failure, and Burke's indignant tirades in the ' Thoughts on the Present Discontents' took practical shape in a great scheme of economical reform. In 1780 he proposed the abolition of fifty offices held by members of one or other House of Parliament. Notwithstanding the opposition in favour of retaining ' the turnspit in the king's kitchen ' as a member of Parliament, Lord Rockingham's Act of 178222660. suppressed a number of offices connected with the royal ^^^- ^- ^^• household which, in the event of their revival, should be 1782. considered new offices within the meaning of the Act of 1706 in amendment of the Act of Settlement ; in other words, they should disqualify their holders for seats in the House of Commons. This was ' the last of the statutes which, in creating official disqualifications, had in view the indepen- dence of the House of Commons.' ^ Future disqualifying Acts ■' Anson, were chiefly intended to secure a permanent civil service which ^- 324- should be undisturbed in the discharge of administrative routine by considerations based upon the fortune of party politics. The effect of these Acts has been to reduce the number of placemen in the House of Commons from 270 at the accession of the Hanoverians, to less than ninety under George IV. The Reform Act of 1832 had an immediate influ- ence in the same direction. At the same time, there has always 2l8 KXCLISil CONSTITUTIONAL HISTORY been a considerable number of ofificers of the army and navy who, as having been bred up in feelings of loyalty to the Crown, are regarded by the extremer radicals as the most dangerous type of placemen. But the very knowledge of this loyalty was a dangerous weapon in the hands of unscrupulous politicians, and neither Walpole in the case of the ' C'ornet of Horse' Pitt, nor George III in that of General Conway — to mention only the most notorious instances — hesitated to dis- miss the holders of these non-political offices for acts and speeches in Parliament. General Conway, however, supplied 1765-1766. the last example; and the constitutional temper of Lord Rockingham's first administration put an end to this unwar- rantable use of the royal power. ' Erskine The question oi pensions} as well as offices, had been dealt 25?-262. '^^^^^ ^y ^^® ^^^^ °^ Settlement; but its severe provisions had been modified by the Act of 1706, which merely closed the doors of Parliament to those whose pensions were enjoyed during the pleasure of the Crown. To these an Act of the first year of George I added pensioners for terms of years. But none of these provisions could cover the case of secret pensions or of pensions granted to the wives of the royal hirelings. Against such there was no safeguard so long as the system of management of Crown revenues left a sufficient sum of money in the king's hands which could be applied to such purposes. The history of civil list pensions, apart from the question of a seat in Parliament, is in itself a revelation of the irresponsible waste of money which was characteristic of eighteenth-century government. It was on the accession of Queen Anne that an attempt was made by law to restrain the power of the Crown in granting pensions charged upon its hereditary revenues and whose payment was binding on its successors. The Act which first restrained the alienation of Crown lands, also provided that no portion of the hereditary revenues could be granted away for any term beyond the life of the reigning sovereign. With the accession of George III such pensions became chargeable on the Civil List, and by Lord Rockingham's Act of 1782 their gross amount was considerably restricted. The Irish pension list, whose history is particularly scandalous, and the Scotch pension list remained untouched by the Act of Anne. In THK HOUSE OF COMMONS. — ITS FORAF 219 1793, in imitation of the English example on George Ill's accession, the hereditary revenues of the former were ex- changed for a fixed Civil List, together with a sejiarate pension list of no less than ^124,000. This sum was reduced in 1813 and again in 1820 to the substantial figure of ^50,000. In 1 8 10 the Scotch pension list was reduced by Parliament to ^25,000. In 1830 the three pension lists were consolidated and the amount reduced from more than ;^i45,ooo to p^yojooo. Finally, on the accession of the late sovereign the right of the Crown to grant pensions was limited to ^1,200 a year, and qualifications were stated for such pensions, which would remove them beyond the region of political reward. A far more subtle method of buying votes than any yet enumerated was (c) the judicious distribution of shares in loans, lotteries and contracts ^ among supporters of the government. 1 Erskine These were all favourite means of securing a parliamentary ^i^- ;g' majority during the first twenty years of the reign of George III. An"son i. The scandals caused by the transactions of Bute, of Grafton 324-325. and of North himself, caused the latter in 1782 to raise a new loan by a system of close subscriptions ; but the deathblow to the waste of public money which had been due to the system of jobbing loans and lotteries, was dealt by the younger Pitt, ,who developed North's latest device for raising money into the modern form of contracts by sealed proposals from different persons, which were opened in each other's presence and the lowest tenders then and there accepted. The ex- travagance of loans and lotteries was only outdone in sheer wastefulness by the grant of lucrative contracts for the public service, a form of bribery which was especially acceptable to the commercial members of the House. The flagrant atyase of this system during the course of the war with the American Colonies, caused the introduction of a bill to dis- qualify close government contractors for a seat in the House. This, though at first rejected, was successfully carried through by the second Rockingham ministry in 1782. An investigation into the sources and the prevalence of Why cor- corruption in the eighteenth century leaves us wondering how, "^"P^',""^^ . in such adverse conditions, public integrity could in any sense public life, be kept alive. It must, however, be remembered that the 220 ENGLISH CONSTITUTIONAL HISTORY legitimate prizes were so great as to attract the best ability to the service of the State. Thus, while a parliamentar}' majority was held together by illegitimate means, the more honourable statesmen, such as Rockingham and both the Pitts, unsparingly condemned the use of such methods, even while they found themselves obliged to acquiesce in their existence. But such condemnation had a wholesome result : it kept alive a standard of public opinion in the matter ; it gradually eliminated the grosser methods of corruption, and it prepared the way for a time when political principles should be sufifi- ciently strong to enable a popular minister to dispense with a bought majority, and when the reform of Parliament should put such methods of diplomacy beyond the reach- of the most skilful party manager. But in defence of the existing con- stituencies it should be said that, even before parliamentary reform was obtained, they represented on the whole the most educated classes in the country, and that in moments of popular excitement they proved themselves not unwilling to respond to pressure from outside. Moreover, in Parliament itself the existence of political parties ensured the advocacy of popular measures and their support by popular arguments. Thus the long exclusion of the Tories from power under the first two Hanoverian monarchs turned the defenders of the prerogative into the champions of parliamentary purity ;^and the equally long exclusion of the Whigs under George III turned the exponents of oligarchical government into the proposers of a moderate, but sufficient, scheme of parlia- mentary reform. Nor should the growing influence of the press be underrated ; for it triumphed in its struggle with the House of Commons over the publication of debates, and together with, and perhaps with more wholesome effect than, ' Erskine ^he organization of parties, it must have done much to form --90^392. ^" intelligent public opinion.' Lecky, i. § 32. Meanwhile, the question of Parliamentary reform 450-452- was attracting a continually larger share of the public attention. Reform The movement which culminated in the Act of 1832 may of the j^g j;ai(j J.Q haye gone through four phases. The first of these Commom;. ^n^y be described as preliminary. In point of time it was 1st phase prior to the French Revolution, and was marked by the —to 1790. . suggestions of individual statesmen who felt tlie evils of the THE HOUSE OF COMMONS. — ITS FORM 221 existing system. The first of these was no less a person than the elder Pitt who, as Lord Chatham, on two separate occasions pointed out the necessity for the amendment of 1766. the borough representation, and as a remedy suggested the addition of a third member to every county ' to counterbalance the weight of corrupt and venal boroughs.' He ventured to prophesy that, ' before the end of this century, either the Parliament will reform itself from within, or be reformed with a vengeance from without.' It is much to the honour of the notorious Wilkes that the next suggestions of* parliamentary reform are associated with his name. In 1776 he proposed 1776. a bill which came nearer than any of these earlier schemes to the principles which received recognition in 1832. Thus, the disfranchisement of the rotten boroughs, which even Chatham had not felt justified in suggesting, was to be accompanied by an increase of members from London and the large counties, and the enfranchisement of several ' rich, populous, trading towns.' Less merit was attached to the terms of a measure introduced in 1780 by the Duke (9/1780. Richmond, which took for its basis the principles of annual .parliaments, universal suffrage and equal electoral districts. These were three points of the later 'People's Charter,' and (1838. ) outside the walls of Parliament were supported by the ' Society for Promoting Constitutional Information,' which was founded in the same year by Major Cartwright and joined by members of both Houses. But the bill was proposed in the midst of the Gordon riots, and met with no sympathy in Parliament itself. The last of these preUminary attempts at reform is connected with the name of the younger William Pitt, who made no less than three proposals with this object. The first of these was in 1782, during the second Rockingham 1782. administration, when his motion for a committee to inquire into the state of the parliamentary representation was rejected by the small majority of 20. ' It has been noticed,' remarks Mr. Lecky, 'that the reformers never again had so good a division until 1831.'^ Nothing daunted, Pitt returned to the ' iv. 223. charge in the very next year, and while in opposition to the Coalition Ministry of Fox and North, he advanced a step 17S3. further by the proposal of three tentative resolutions for measures to prevent bribery, disfranchise corrupt boroughs . 222 ENGLISH CONSTITUTIONAL HISTORY and increase the county members. But these sug^estions, while disappointing to the advocates of reform who were floodmg the House with petitions, did not commend them- selves to a ParHament whose conscience had been allayed by Lord Rockingham's late moderate measures, and, in a full house of 450, Pitt's motion was rejected by a majority of 144. 1785- The third and last attempt was in 1785, when Pitt had taken his place at the head of the ministry as the nominee of the king. Despite the known hostility of George III, Pitt redeemed th|i pledge he had so often given, and introduced a comprehensive scheme of reform. By this he proposed {a) to distribute among London and the counties and certain large, hitherto unenfranchised, towns, a hundred members gained by the disfranchisement and purchase of small and ' rotten ' boroughs : {l>) to enlarge the county franchise by the addition of copyholders, and {c) to compensate the proprietors of the disfranchised boroughs to the amount of a million sterling from the revenues of the State. No doubt, Pitt thought that this was the only way out of a great practical difficulty, and he actually applied this method afterwards on a large scale for effecting the Irish Union ; but the ardent reformers refused to recognize the vested right of property in the representation, while the king and the rest of the ministry were directly hostile. Pitt was even refused leave to bring in his bill, but by a diminished majority of 74 in a House of 420 members. In 1790, on Flood's motion, and again in 1792 on Grey's motion in favour of reform, Pitt acknowledged that he still entertained an opinion in its favour, although he believed that under the ' Krskine present circumstances it was impracticable.' ^''iy> i- In truth, the first phase of the reform movement was at an I^ckv^' '''"^" ^^ ^^'^^ ^° longer a question which depended for its V. 60-63. advocacy on individual statesmen. The early stages of the French Revolution made it in England the creed of a party which welcomed the example of a people struggling to bt; free ; while the excesses of the Revolution, together with the sufferings of the working classes in England by reason of the prolonged war, threw the cause of parliamentary reform into i\\g. hands of leaders of * Hampden Clubs ' and other ihase— democratic associations which found their supi)ort among the 1790-1797. unenfranchised classes of the nation. Thus a second phase THE HOUSE OF CO^FMONS. — ITS FORM 223 may be said to extend from 1790, when Pitt definitely re- nounced the cause, to 1797, when an elaborate motion of Grey and Erskine was rejected by a large majority. During these years the proposals of the reformers under the leadership of Mr. Grey were on the lines of those which Pitt had recently formulated, and were supported by the ' Friends of the People,' the most respectable among the political societies which then sprang into existence.' After the defeat of Grey's motion the ' Erskine opposition for a time seceded from the House of Commons ^^^y> i- as a protest against the whole policy of repression for which Pitt was using his huge parliamentary majority. With this episode the reform movement entered on its third and least creditable phase. For twenty-three years it was practically the Third monopoly of demagogues outside Parliament. Grey and Erskine \jqI'^7q2c were called to the House of Lords, and its advocacy in the Commons was left to an eccentric aristocrat — Sir Francis Burdett. To the earlier proposals of the Duke of Richmond was now added the democratic safeguard of the vote by ballot ; but frequent motions on behalf of such extreme principles ended by leaving their proposer with one supporter in the - //>id. i. House.' 405-408. The fourth and concluding phase began when Lord John Fourth Russell associated himself with the question, and thus restored phase— 1820 lS''2 the leadership in the movement to the Whigs. His first ' ^ motion in favour of reform in 1820 was followed by others in 1822, 1823 and 1826 on the old lines which had been laid down by Pitt and Grey ; but they were all equally rejected by majorities of more than a hundred.'' The only prospect of ■'//'/(«'. i. success seemed to lie in a change of tactics. The reformers 4^°""^' ^" determined to attack and destroy in detail all those boroughs which could be convicted of gross corruption. Such disfran- chisement, indeed, was not altogether unknown in the past, and bribery and traffic in seats were now to be regarded, not so much as regrettable but perhaps necessary accompaniments of the political system of the time, as serious moral evils whicji must at all costs be rooted out. In 1S20 a preliminary success was gained by the disfranchisement of the Cornish borough of Grampound, whose members were transferred to the county of York.'* But the reformers desired to go a step further," and to ^ //>iti. I. transfer representatives so gained to the large manufacturing 409- 224 ENGLISH CONSTITUTIONAL HISTORY towns which were as yet entirely unrepresented. With this view, they attacked four notorious cases which had been exposed in the elections of 1826. These were Northampton and Leicester, where the corporations had applied large sums of the corporate funds to support ministerial candidates, and Penrhyn and East Retford, where bribery had been employed in the most shameless manner. I^ut the proposals of the ' Erskine reforming party were defeated over their attempts to transfer May, i. the seats to Manchester and Birmingham.' Had the govern- ^^^''^^ ■ ment conceded these demands, it is possible that the progress of reform would have been postponed for many years. As it was, their rigid opposition caused the resignation of all the more liberal members of the ministry and weakened their ranks for the struggle which now became inevitable. The final In 1830 Lord John Russell proposed the direct enfranchise- struggle for n-jg,-,^ Qf Leeds, Birmingham and Manchester, and O'Connell took up the programme of Sir Francis Burdett. But the death of George IV in this year and the consequent dissolution of Parliament brought matters to a crisis. The immediate success of the reform movement may be ascribed to three circum- stances. In the first place, the Catholic Emancipation Act of 1829 had so loosened the bonds of party allegiance that politicians were only waiting for some popular cry to form themselves into new parties. Then came the Revolution of 1830, when Charles X's attempts to repress freedom of dis- cussion and rei)resentative government in France resulted in his deposition ; and the excitement was heightened by the revolt of Belgium from Holland, to which she had been joined in 181 5. Finally, the Duke, of Wellington, who was Prime Minister, threw down a direct challenge to the country when, in the debate on the address, he declared, in answer to Earl Grey, that 'the legislature and system of representation ■"- //>i,f i possessed the full and entire confidence of the country.' - 417-420! A fortnight later the Duke was defeated on a motion of incjuiry into the Civil List, and resigned. Lord Grey became Prime Minister, and was of course pledged to a measure of parlia- mentary reform. The difficulties to be overcome were enor- mous—on the one side, the reluctance of the king and the open hostility of the boroughmongers, and, through them, of a majority in perhaps both Houses of Parliament ; on the other THE HOUSE OF COMMONS. — ITS FORM 22 5 side, the desires of the more ardent reformers who now looked for an adequate realization of their dreams. But despite all these, the measure of the government, moderate and yet comprehensive in its provisions, was carried to a triumphant conclusion. Three bills in succession were introduced. The first, proposed by Lord John Russell in March, 1831, was only carried through the House of Commons by a majority of one on its second reading, and was defeated in Committee. Parliament was dissolved, and in a House. of Commons full of members pledged to reform, the new bill was passed by a majority of 136, only to be thrown out in the Lords by 41. A third bill was promptly introduced, which remedied some of the objection- able clauses of its two predecessors : thus it retained the number of members of the House at the same total as before, instead of reducing them as was at first proposed. This bill passed the Commons by a majority of 162, and in April, 1832, its second reading was affirmed by the Lords by 9 votes. But this was only preliminary to its destruction by amendments moved in Committee. In fact, the moment had come when either the Lords must give way or the ministers resign. The king refused to create a sufiicient number of peers, and the ministers did resign. The Commons passed votes of confidence in them : Wellington in vain attempted to form a cabinet, and Grey and his followers returned to office. 'I 'he king now put no obstacle to the creation of peers, but at the same time used his personal influence to prevent its necessity. The Duke of Wellington 1 Erskine also came to the rescue ; the opposition peers were persuaded May, i. to absent themselves" and the bill was passed.^ 421-427- The details of its provisions have already been described. The Reform There were four chief evils of the old system which it recog- ^'^^ °^ "^32- nized and met. Eighty-six rotten boroughs were wholly or in part disfranchised. Large town populations hitherto unrepre- sented were provided for, and the more populous counties received extra consideration. While the rights of individual electors were saved, the hitherto restricted franchise, whether in counties or boroughs, was considerably enlarged, although each was established on a separate basis. One effect of this distinction between the county and the borough franchise must not pass unnoticed. So long as it existed, ' a measure of redistribution was necessarily a measure of disfranchisement, 9. 226 KXr.LISII CONSTITUTIONAL HISTORY Where a borough ceased to return members, its electors . . . with the exception of those who might possess the county 1 Anson, qualification, ceased to be electors at all.'^ It will be seen that i. 126. i-)-,;^ applies also to the Act of 1867, but not to the Redis- tribution Act of 1885. Finally, by ])roviding for the registra- tion of electors, the increase of polling districts and the limitation of the days of polling, the Act sought to diminish 2 Erskine the cfiormous expenses at elections."^ These points received -' '• further attention from Parliament during the succeeding 427-429. . . . ° . ° sessions ; but as to general principles the Whigs regarded the Act of 1832 as final, and no further motion for reform was made in Parliament for 20 years. Reform But the people in general were far from being satisfied. The after 1832. j^eform Act had done nothing except provide 'a remedy for the worst evils of a faulty and corrupt electoral system. It had rescued the representation from a small oligarchy of peers and la^ndowners and had vested it in the hands of the middle classes. But it had spared many boroughs, which were per- haps too small to exercise their suffrage independently : it had ^ Ibid, i. overlooked the claims of some considerable places'''': and it 450- had not taken the working classes into account at all. From 1838 to 1848 the cause of reform was in the hands of the Chartists, who regarded the establishment of the six poirits of the People's Charter as a panacea for all the political evils of the country, and refused to work with the free-traders, whom they stigmatized as 'quacks.' Their six points were the old proposals of manhood suffrage, annual Parliaments, equal electoral districts, and vote by ballot, together with two new suggestions for the revival of payment of members, and the abolition of the property qualification for members of Parlia- •* Ibid. ii. ment which was merely modified in 1838.'* The leaders of 407 413- the movement were Daniel O'Connell and Feargus O'Connor, and it was productive of considerable violence in various parts of the country ; but it was not until the discovery of the fictitious names appended to a monster petition presented to the House of Commons, and purporting to bear more than five million signatures, that the movement was finally dis- credited, and the question of the extension of the franchise once more became a cabinet measure. In the course of the 1852-1867, next fifteen years four abortive measures were proposed, three THE HOUSE OE COMMONS. — ITS EORM 227 of which were associated with tlic name of Lord John Russell. In 1852 he proposed to lower the franchise so as to embrace classes, especially the most skilled artis3n.s, who had not been included hitherto. In 1854 he suggested measures for the representation of minorities and for giving greater weight to the educated and thrifty classes. These last were imitated by Mr. Disraeli in 1859 in the government of Lord Derby, who also suggested the assimilation of the county and borough franchise. In i860, in Lord Palmerston's ministry, Lord John Russell made his final proposal of reform, in a bill which, while lowering the franchise, spared all the smaller boroughs.' ' Erskine No other governmental measure was proposed during the ' J^\1'q lifetime of Lord Palmerston, who was known to be unfriendly to the cause of parliamentary reform. His death in 1865, and the accession of Earl Russell to the post of Premier, re- vived the hopes of the reformers. But circumstances were unfavourable ; reform had not been a moot point at the previous elections, most of the members were of Lord Palmer- ston's opinion, and were not anxious to run the risk of a dis- solution after one session. A bill, however, was introduced by Mr. Gladstone, but a large secession took place in the party, which was nicknamed by John Bright the ' Cave of Adullam," and the ministers carried their proposals by such small majorities that they regarded it as a defeat and re- signed. Lord Derby was called to office again with his party in a minority in the House of Commons, and the popular disappointment at the failure of the Whigs culminated in a riotous meeting in Hyde Park. Some measure of reform seemed imperatively necessary : the Conservatives introduced their bill, and chiefly owing to the tact of Disraeli who had the conduct of it, the ministry gained the support of the Dissentient Whigs, and in 1867 passed a scheme, stripped of all those provisions and safeguards which had originally commended it to the real supporters of the ministry. Needless to say, this ultimately satisfied a very small section of the - /did. iii. House.- 429-439- Besides the redistribution of fifty-two seats gained from The Repre- disfranchised boroughs, the chief provisions of the Act were the'peo"ie the lowering of the property franchise and an addition to the Act, 1867. 228 ENGLISH CONSTITUTIONAL HISTORY occupation franchise in the counties, and the introduction of the household and lodger franchise into boroughs. By the influence of Lord Cairns provision was also made for the representation of minorities by the addition of a third member .for Manchester, Liverpool, Birmingham and Leeds, electors not being allowed to vote for more than two candidates. Partial and unsatisfactory though this measure was in the eyes of reformers, it almost doubled the electorate. The small body of about 300,000 who possessed the franchise before 1832 had risen under that Act to 1,370,000 just before the further Act of 1867 came into operation. The operation of that Act raised it to three millions. 1S69-1874, But further legislation was inevitable. Mr. Gladstone's first ministry contented itself with the Ballot Act of 1872, which should secure the poorer voters against undue influence by legalizing the system of secret voting. From 1872, however, a motion for the extension of the county franchise became an 1S80-1885. almost annual proposal, until in his second ministry Mr. Glad- stone found himself strong enough to satisfy the utmost The Repre- aspirations of his most ardent supporters. The two chief ^r'!l^^'?." notes of the Act of 1884. were the assimilation of the county of the reo- ^ . ■' pie Act, and borough franchise and a thorough redistribution of seats 1884. with some approach to equal electoral districts. No less than two million voters were thus added to the electorate. Thus, of the six points of the People's Charter, a lapse of less than The Redis- forty years had sufficed to accomplish all except two. The inbution property qualification for members of Parliament was abolished ' in 1858; vote by ballot was granted in 1872, and the last Reform Bill practically provided for manhood suffrage and made a very long step towards equal electoral districts. Annual Parliaments and payment of members alone remain ; and while the latter has the support of a large and influential section of the Radical party, the enormous size of the electorate seems to render the former impracticable. The repre- By the Act of 1884 the plain and intelligible principle of sentation of < counting heads ' has received such complete recognition minorities. , . ° , , , 1 , 1 • -i 1 •/- • that It would probably l)e mipossible, even it it were ever considered desirable, to go back upon it and to attempt to found our system of representation on any other basis. It is thus all the more important to note some of the suggestions THK HOUSE OF CO:vr.MONS. — ITS FORM 229 which have been made from time to time and have even been embodied in abortive bills, for the 7-cprcscntation of minorities whether based upon local, social or intellectual con- siderations.^ Some of these suggestions were too obviously ^ Anson, i. artificial to be of more than temporary importance. Such '34-i40- were the varieties of what were disdainfully czS^^td^ faiicy fran- chises, which found a place in the abortive bills of 1854, 1859 and Mr. Gladstone's measure of 1866, and which were pro- posed and rejected in the bill of 1867. Their chief object was the recognition, as parliamentary voters, of ' the educated or the thrifty man.' One of the most serious objections to many of them was that it would be easy to create the neces- sary qualification with a view to an election. A similar objection does not hold in the case of another of these sug- gestions, the institution of what have been called three-cornered constituencies. But this precautionary measure, which was first suggested in the bill of 1854, was actually embodied in the Act of 1867, and was abolished in the Redistribution Act of 1885. The chief objection w^as that it practically left the majority of voters in the largest cities with one member to represent their views, and thus reduced their power in Parlia- ment to the level of the smallest constituency in the country. A third suggestion in the same direction is, what was originally known from its promoter as. Hares scheme, which gained the warm applause of John Stuart Mill, and which in a slightly modified form as proportio7ial representatio?i, at one time obtained considerable support. The details are too long for re- production here. Suffice it to say that a long division sum, with the number of registered electors as dividend and the number of seats to be filled as divisor, will give as its quotient the necessary constituency for an elected member. Voters would be allowed to record their votes in order of preference for all candidates throughout a larger or smaller district as might be thought most practicable. The voting-papers taken at random would be counted until some one candidate had secured the requisite number of qualifying votes. All votes subsequently given for him should then be transferred to the voters' second choice. In this manner, it is contended, all the seats will gradually be filled, no votes will be thrown away in hopeless minorities, all interests will be adequately represented, and 230 KNGLISn CONSTITUTIONAL HISTORY the real strength and opinion of the electorate will be satis- factorily tested. It may be doubted, however, whether under any system of reckoning the choice of the voting-papers does not reduce the scheme to a lottery and thereby prevent it from becoming, except in such a rough-and-ready way as the present system provides, a thoroughly trustworthy representa- tion of the country. CHAPTER V THE HOUSE OF COMMONS IN ACTION § 33. The history of the form of the House of Commons Growth of has now been sketched to its completion, or rather, to the 'he power -A , . .... of the assumption of its present shape. But this was only prenmi- House of nary to a study of the far more important point of the growth Commons, of the constitutional powers which has brought the House of Commons to its present omnipotent position. It is primarily as the legislative assembly of the nation that Parliament plays its part in the constitutional system of the country. But the duty of the House of Commons in this respect was originally quite subordinate to its functions in the matter of taxation ; while the important share which it now takes in criticism of the executive, was a still later development in its general acquisition of powers. Under these three heads, then, — ■ taxation, legislation and general political deliberation — may be arranged most conveniently all that should be said of the constitutional progress of the House of Covwwns. Now, theoreti- cally and in a general kind of manner, the kings seem to have been willing, almost from the very beginning of Parliaments, to accord to the Commons a participation in the most impor- tant powers of government. Thus the Confirmatio Cartarum of 1297, which followed hard upon the meeting of the Model Parliament, ])romised in the name of the king with regard to taxation, that 'for so much as divers people of our realm are in fear that the aids and tasks which they have given to us before time towards our wars and other business . . . might turn to a bondage to them and their heirs ... so likewise the prises taken throughout the realm by our ministers; we have granted for us and our heirs . . . that for no business henceforth will we take such manner of aids, tasks nor prises, but by the corn?non asse?it •231 232 ENGLISH CONSTITUTIOXAL HISTORY 15. C. 496. 2 S. C. H. §254. Direct attempts to obtain control over (l) direct taxation ; ^ S. C. §§ 257, 275- //. of the rea/m, and for the common profit thereof, saving the ancient tasks and prises due and accustomed.' ^ Even more definite was the acknowledgement made in the Parliament of Edward II in 1322 as to legislation, that 'the matters which are to be established for the estate of our lord the king and of his heirs, and for the estate of the realm and of the people, shall be treated, accorded and established in parliaments by our lord the king, and by the assent of the prelates, earls and barons and the commonalty of the reahn, according as hath been heretofore accustomed.'"' But this was an equality which, in actual practice and in the prevailing division of Estates, was worthless. The true position of the Commons was only to be won gradually, by hard fighting, by use of opportunities ; the attempt could not begin until the Commons had, as a separate House of Parliament, acquired a solidarity of form and interests ; and it was only natural that the first acknowledged and substantial victory of the Commons should be in that department in which their help had been first required and which in the end they have entirely monopolized. The leaders of the assembly which had wrung the Confir- matio Cartarum from the representatives of the absent king, had intended by the words quoted above to ensure the surrender by the king of all right to direct and indirect taxation alike. But so far as direct taxation was concerned, the king still felt himself justified in levying, without any special consent, feudal taxes, such as the three aids and scutage, as well as the old landlord's tallage on ancient demesne. Consequently in 1340, soon after the Estates had arranged themselves in two Houses, Edward III was forced to consent to a statute which ordained that ' henceforth no charge or aid should be imposed on the nation except by common assent of the prelates, earls, barons and other great men and the commons of the realm assembled in Parliament.'^ But, although this statute was an answer to the petitions of the Commons, there is nothing to show that the power of making money grants was regarded as peculiar to the representative branch of Parliament. As a matter of fact, although the statute was intended to preclude every species of unparliamentary taxation, the king did not hesitate in 1346 to exact a feudal aid at the knighting of the Black Prince, and that moreover at a double rate; while under Richard II a scutage TIIK HOUSE OK COMMONS IN ACTION 233 was remitted in 1385 as a tax which the king still regarded as his due when he went to war in person.' liut the first business oC^ S. C. H. the Commons was to insist on the necessity of their being ^ ^^5" consulted as a preliminary to any grant of taxation.- The gg^'^''^^ usual method seems to have been for the king to send com- 437.438, missioners to each house of Parliament, as he did also to the two clerical Convocations, to lay his demands before them. The Estates and, after the division into two Houses, the Houses then joined in consultation, the result of which was the declaration of the method by which the money should be raised — whether as tenth and fifteenth, wool tax, tonnage and poundage — and of the proportions in which it should be assessed upon the various Estates. At first each Estate voted its grant in a different proportion ; but the first advance in the direction of the financial supremacy of the Commons was made when those proportions were reduced to two in number and the difference w^as based on local and not upon class distinctions. But for the present the grants w^ere still made by the two Houses jointly. It is in 1395 for the first time that the decisive share which the Commons may be said to have gained in the reign of Edward HI, finds definite expression in the words of the grant. The money was said to be given 'by the Commons with the advice and assent of the Lords.' This form was repeated in two of the earliest Parliaments of Henry IV (1401 and 1402), and although the form was not always adhered to, the principle of the necessity of participation by the Commons in any such grant, may be said to have received formal recog- nition in 1407 when Henry IV, in response to a remonstrance of the Commons at his consultation on financial matters with the Lords alone, allowed that neither House should make a report on a grant until both were agreed, and that then the report should be made by the Speaker of the Commons. It is, however, unlikely that this concession ' was at the time under- stood to recognize the exclusive right of the Commons to originate the grant.' ■'^ It is enough to suppose that, from the "Ibid. time of Richard II, they were regarded as not merely necessary § 37°- participators, but as the possessors of the preponderating voice. Indeed, it was not until the reign of Charles I that grants were definitely ex})ressed as made by the Commons alone. In 1625 the subsidies were stated to be granted by 'your Com- 234 ENCLISIl CONSTITUTIONAL HISTORY (2) indirect taxation. Customs. mons assembled in your High Court of Parliament.' The further question of the attitude of the House of Lords towards a money grant must be reserved until the mutual relations of the two Houses are considered. Among the ways by which the first attempts of the Com- mons to control the grant of direct taxes were evaded, the private dealings of Edward HI with the merchants holds the earliest place. This proved to the Commons the necessity of keeping a hand on such indirect means of raising money as were afforded by the Customs, Purveyance and Commissions of Array. But even here the power of Parliament could only be exercised in an indirect manner. Until the Commons were strong enough to enforce it, definite prohibition could have but one effect. The kings would either ignore it altogether, or would find other means of obtaining w.hat they wanted. Thus the only wise policy for the Commons to pursue was, while acquiescing in the fact of a money grant unconstitutionally obtained, to assert the principle that all grants must be sanctioned by their vote. The detailed history of the Customs duties is given elsewhere.^ Here it is merely necessary to recall that in 1275 the Commune Concilium had granted to the king the customs on wool, woolfells and leather at a fixed rate, to which, under the expressive name of a Male- tote, the Confirmatio Cartarum in 1297 forbade any increase. But in 1303 Edward I obtained such increase by private agreement with the foreign merchants; and in 1353, by the Statute of Staples for the regulation of the foreign trade, Parliament not only acquiesced in the levy of this increased rate from the foreigners, but even turned the Maletote into a parliamentary grant of a subsidy on wool. Towards the end of Edward Hi's reign the king's frequent atterfipts to implicate the Commons in his foreign policy, and his continuous demands on them for money to carry on his wars, emboldened them to 36Eclw.I^ go further, and in 1362 they obtained an act, which was con- firmed in 137 1, to the effect that neither meixJumt nor any other body should henceforth set any subsidy or charge upon ivool ivith- out consent of Parliament. But the increased manufacture of cloth in England appreciably lessened both the custom and the subsidy on the export of wool ; and perhaps in compensa- tion the customs on wine and general merchandise, known ' Chap, 1275- 1297. Their early settlement. 1353. 1362 1371 THE HOUSE OF COnnrONS IN ACTION 235 under the name of tonnage and poundage, were from the accession of Henry VII granted to the king for his Hfetime. Hallam remarks that from the reign of Richard II to that of Their Mary Tudor no addition was made to the established rates increase of Customs duties.' This may be true of the Lancastrian and Xudo'rs^^'^ Yorkist kings, but the Tudors began early to use this means and of increasing their revenue. It is noteworthy, however, in the Stuarts, light of subsequent events, that their interference was covered by the form of parliamentary sanction. Thus, in 1491, in the supposed interests of English commerce, the duty on sweet wines coming from the Levant was largely increased, and in 1532 the importation of French wines was partially forbidden. Far more important was an Act of 1534 which authorized Henry VIII 'to regulate by proclamation the course of trade, even to the extent of repealing statutes in force or reviving such as might be obsolete, touching the import or export of any merchandise.'" Hence originated the royal right of levying '^ Prothero, what came to be called 'Impositions,' a right exercised un- "" checked by Henry VIII no less than by Mary and Elizabeth. By this means the Crown was definitely armed by Parliament with the power of protecting the commerce of the country by the retaliatory or protective measures which were then in vogue. Nor was the first use to which James I put this power any less justifiable than the action of his predecessors. The Levant Company had agreed to pay Elizabeth ^4,000 a year in return for the privilege, among others, of levying a duty on currants on all merchants outside the Company who traded in them. In response to the outcry against monopolies in 1601 the Company surrendered its charter. The Crown thus lost ;2^4,ooo a year and, in order to recoup itself, took over the duty on currants previously levied by the Company. But the Comi)any was revived, obtained a patent in 1605 and even pecuniary assistance from James I ; ■' and it was a merchant of -^ Gardiner, this new Company, J^o/i/i Bate, who raised the important "• ^"4- constitutional question of the king's power of taxation by refusing to pay the duty which he believed to be an illegal imposition. The government determined to have the case argued in the Court of Exchequer. The four Barons decided entirely in favour of the Crown ; Sir Edward Coke and Hake- will, who was afterwards one of the chief opponents, were at ENGLISH CONSTITUTIONAL HISTORY ^ Gardiner ii. 5-1 1. Prothero, Ixxv. - Prothero, 340-342. ■' Gardiner, ii. 70-72, 75-83, 237-241- The quarrel over Tonnage and Poundage. the time perfectly satisfied, and the Parliament of 1608 acquiesced in the decision. Modern historians have agreed that the Barons' judgement was both unbiassed and in accord- ance with precedent.^ It was certain extraneous arguments in which they allowed themselves to indulge, which foreshadowed the strong bias of the judicial bench in the future quarrel between Crown and Parliament : for Baron Clarke held that the statutes asserited to by one king did not necessarily bind his successors, while Chief Baron Fleming distinguished between the ordinary power of the Crown which is exercised in accord- ance with the common law and its absolute power which cannot be circumscribed.- Bate's case, then, of itself roused no great feeling. But, in reliance on the decision, the Treasurer, Lord Salisbury, issued the usual Book of Rates embodying the new duties, and James in a commission issued to Salisbury authorizing their levy, clearly claimed the entire right for the Crown. The result was that the popular party in the Parlia- ments of 1610 and 1614 strongly protested against their levy; the case was argued against them by the king's supporters, and the ground then taken up was maintained in all the consti- tutional arguments on either side down to the outbreak of the Civil War.^ In the later Parliaments of James' reign, those of 1 62 1 and 1624, other matters occupied the attention of the Commons. But the accession of a new king gave the Commons the opportunity for which they were waiting, and they refused to make Charles the usual life-grant of tonnage and poundage for more than one year, pending an inquiry into the illegal customs exacted during James' reign. But even this modified grant was never passed ; for the Bill was read over in the House of Lords, and its course was then stopped by dissolution. James had taken only the extra sum or position without consent of Parliament. Charles did hesitate to levy Tonnage and Poundage itself when Parliament withheld it, and that he took at the higher rate of his father's impositions. It seemed useless to apply to the judges, and the question only came up again in connection with the Petition of Right in Charles' third Parliament of 1628. Early in the session a bill for the grant of tonnage and poundage had been introduced, but was put aside by the long debates and negotiations which ended in the king's signature the im- not THE HOUSE OF COMMONS IN ACTION 237 of the Petition of Right. One of the four points in this to ■which the king assented, was that ' no man hereafter should be compelled to make or yield any gift, loan, benevolence, tax, or such like charge without common consent by Act of Parlia- ment.' ' Some alterations in the incidence of the rates seemed ' ■S. C 517. desirable, but Charles refused the temporary bill which the Commons proposed to pass in order to make some provision in the current session. He probably thought that the Commons were putting forward a claim to be the sole originators of the right to levy customs in order that they might compel him to attend to their grievances. The Commons consequently drew up a Remonstrance, the second in that session, in which they gave the lie to their own contemplated action by trying to squeeze into the words of the Petition of Right a prohibition of the levy of tonnage and poundage. ' The receiving of tonnage and poundage,' they declared, 'and other impositions not granted by Parliament is a breach of the fundamental liberties of this kingdom and contrary to your Majesty's late answer to their Petition of Right.' The king was technically in the right when, on proroguing Parliament, he declared that by the Petition he had granted no new, but only confirmed the ancient liberties of the subject, and that as for tonnage and poundage, he did not intend to give away his right to levy it, nor could he in fact do without it.^ But the Commons' - Gardiner, remonstrance was not without effect : for it encouraged the ^''" ^^^~ . . 227. merchants to refuse payment. Charles and his Council, taking Comt. their stand on the decision of the judges in Bate's case, ordered ^octs. the goods of those refusing payment to be seized, and refused j!"' '^'^ them any redress. Two cases in particular came up for trial — that of Chambers^' in which the judges to whom he appealed •! Gardiner refused to interfere with the jurisdiction of the Star Chamber vii. 3-7, before which he was prosecuted; and that o'i John Rolle,^^^'^^' ^^^' a merchant and also a member of Parliament, in whose behalf yji 28-^1; the Commons took their stand on the narrow ground of breach of privilege and, in order to punish the royal officers, tried to draw a distinction between them and the king. The defiant and irreconcileable attitude of the Commons in the second session brought about a dissolution ; but, before Charles 1629. could fulfil his intention, the Commons, with locked doors, held the unwilling Speaker in the chair and passed resolutions 238 ENGLISH CONSTITUTIONAL HISTORY ' Gardiner, condemning as enemies of the country all who should advise vii. 67-76. j-]^^, levvins of tonnacre and poundage and all who should pay C oust. .00 1 o i J Docts. 16. the same.' During the eleven unparliamentary years which 1629-1640. followed, the impositions continued to be levied with more or less resistance until, in 1641, the Long Parliament passed a Tonnage and Poundage Act conveying these duties to the king for two months only in return for renunciation of all future claim to levy customs and duties of any kind without - Const. grant of Parliament.- Docts. 8b. ^^^ jj^g Restoration the Customs were rearranged and were all granted to Charles II for his life. Finally, James II, on his accession and before the meeting of a Parliament, issued a proclamation for the levy and employment of the Customs just as if they had been granted to him. An excuse for this may be found in the natural derangement of the course of trade which would have resulted from the arrest of goods at the ports until the duties had been voted ; but it was perhaps fortunate for James that his first Parliament was enthusiastically Tory and did not hesitate to grant him the (Customs revenue ■' Macaulay, q{ hjg predecessors, even augmented, for his life.^ All pos- i 211; "^ sible contest between Crown and Parliament over questions of taxation stopped with the Revolution. There were other forms of indirect taxation more difficult to control because they were less tangible. Such were the old prerogative rights of Purveyance, Commissions of Array and Distraint of Knighthood. The two latter may be easily Commis- dismissed. Co7?i7Hissio/is of Array, of which an account will array" ^^ found elsewhere,'* only became a means of indirect taxation 4 Chap. ix. vvhen the townships on which the troops were levied, were forced to support those troops even though they were used on * .S'. C.I/, foreign service.'' In 1327, in answer to a petition of the „^ °' Commons complaining of such an infraction of the Statute of Winchester, it was ordained that only in case of in\asion should the ' gentz de commune ' be called upon to arm them- selves at their own expense. Further breaches of the law 25Edw.III. produced continual petitions, which resulted in an Act in St. 5. c. 8. 1352, which was confirmed in 1404, and allowed that e.xcept 4 Hen. 1\ . . ^ . . Ill r ^ ■ ■ c. 13. m case of invasion none should go out of their own counties, and that all who went on foreign expeditions should be at the king's charges from the day on which they left their own THE MOUSE OF COMMONS IN ACTION 239 counties. But the abuse was not abolished. Henry V may have raised his victorious army by legal methods, but Edward IV and Richard III used any means ready to their hands. It was not that Commissions of Array were illegal in themselves, but that the method was illegally employed. It continued until the general question between king and Parliament had been settled at the Great Rebellion, when it was superseded by other ways of raising troops, and forbidden by the general attitude of the Commons towards all forms of taxation. Distraint of Kniglithood, again, had originally fallen on all I^isuaim of possessed of land to the value of ^^20 a year. Elizabeth, ^^^ Jkmes I and Charles I all levied money by this means, and raised the qualifying amount to £,i,o worth of land. The Long Parliament included this among the many illegal methods of raising money which it abolished. The history of Purvey- atice demands more detailed treatment, and will best be dealt ' Chap. x. with in speaking of taxation. ^ So far an attempt has been made to indicate the dates at Indirect which Parliament in general, and the House of Commons in obtaining particular, obtained a gradual acknowledgement from the Crown control over that the grant of all taxes lay with them. But the real control taxation, of the Commons in this important matter was gained not so much by direct prohibitory legislation, as by the establishment of three principles whose acknowledgement by the Crown in- volved a practically complete surrender to the demands of the Commons. These three principles may thus be regarded as S7ipple7ne?itary means by which the Commons obtained a control over the grant of taxation. In the first place, they stipulated that, before they made their money grant, an answer should be given to the petitions of grievances which they had presented to the king. They insisted, secondly, on the appropriation of these grants to specified purposes ; and thirdly, as a natural corollary, that the accounts should be properly audited to ensure that this appropriation had been made. Hallam - has remarked that instead of the ' magnanimous - ^l-^''^"^-... boast that the liberties of England were bought with the blood 'Y^'*' '"" . ° ° 162. of our forefathers ... it is far more generally accurate to say that they were purchased by money.' Indeed, the money question has been a practical solution of otherwise insoluble questions of constitutional rights, and has placed a limit to J 240 ENGLISH CONSTITUTIONAL HISTORY disputed powers by translating them into a tangible form. From the earliest meeting of Parliament the presentation of grievances became an invariable preliminary to the discussion of a money grant ; and, in order to ensure an answer to their petitions, the Commons put off the grant until the last day of the session. It may almost be said that, in the early days of Parliament, constitutional progress really turned on the execu- tion by the Crown of the conditions in return for which the ^ .S". C. H. supply had been granted.^ For, the supply was practically never refused, while more (i) Redress often than not the promises remained unfulfilled. But with supply'^ ^ ^^ growing needs of the Crown came the opportunities of the Commons. The feeling that a grant should only be an answer to satisfied petitions, can be first traced in the Par- liament of 1339. It was most definitely implied in 1348, and again in 1373; and in the second Parliament of Henry IV, in 1 40 1, a petition on this very point was presented to the king. On this occasion he emphatically refused the demand as contrary to ' the good customs and usages made and used of ancient times,' in other words, as without precedent. But the principle had been definitely formulated as a regular mode of action : it was ' one of the most distinct statements of ■-' .S". C. H. constitutional theory that had been ever advanced ' ; ^ and the § ^°^" Commons, not to be baffled, soon afterwards adopted the practice of delaying the grant imtil the last day of the session. Indeed, the practical gain of the Commons may be measured by the history of the Lancastrian dynasty ; for, the failure of that house was largely due to the fact that while supply was absolutely necessary to the Crown, it had not the strength ' to carry out the redress which it had promised as a condition of the money granted. Until very recently a relic of this principle, that redress of grievances should precede the grant of supplies, was to be traced in the procedure of the House of Commons. The amount of money which is to be granted to the Crown is considered in the Committee of Supply, into which the whole House of Commons resolves itself for the purpose. But until 1882 it was in the power of any member, on the motion that the Speaker should leave the chair in order that his place should be taken by the chairman of the Committee, to move an amendment relating to any matter THE HOUSE OF COMMONS IN ACTION 24 1 whatsoever. This practice was, however, curtailed by a stand- ing order of the House in 1882.^ 1 Anson, But the Commons attempted to go a step further, and to '• 270- ensure that the money granted should be applied to the (2) Appro- purposes for which it had been demanded. Already in 1237 P"ation of one of Henry Hi's ministers, William of Raleigh, had suggested ^^PP''^^- that the Commune Concilium should appoint a committee with whom the collected grant should be deposited. But the barons refused this most important concession, although in the struggle which followed, one of their chief efforts was to wrest from the king the power of spending the money grants. Under Edward H all the powers of the executive were for a time in commission ; but during the period no constitutional principle was established. It was Edward Hi's squandered expenditure of the supplies so constantly demanded, which first made it an important practical question that Parliament should determine not only the grant, but the way in which that grant should be applied. Nor did the king throw obstacles in the way. As a rule, at the opening of Parliament the members were told the objects for which money was specially needed, and for which Parliament had therefore been called together ; and this explanation was often repeated to the Commons alone. It did not follow that the money was apphed to the purposes for which it had been demanded of the Commons. Under Edward III no doubt ' the form frequently degenerated into mere verbiage.' Still, the custom was useful ; and during his reign a subsidy was frequently granted on condition of the continuance of the war.- Under the Lancastrians, however, there are signs ^ 5_ c. //. that it was becoming an accepted principle. In 1415, §287. after the victory of Agincourt, tonnage and poundage was granted to Henry V for the rest of his reign, and in 1453, when similarly granted to Henry VI, it was appropriated to the navy.^ But like many other constitutional practices, a piummer's this principle of the appropriation of supplies fell into disuse Fortesaie, under the Yorkists and Tudors. It was reintroduced under ^.^^^ James I in 1624, when the king himself suggested that the §371. money granted for the succour of the Palatinate should be made over to commissioners nominated by the Commons ;^ it 4 p became the custom during the Commonwealth, and under 279. ' R 242 ENGLISH CONSTITUTIONAL HISTORY ' Hallam, ii- 357- (3) Audit of accounts, 1377, '-' .S-. C. H. §288. 1407. 3 Ibid. §371- 1666. 1667. •* Hallam, ii. 358-360. somewhat curious circumstances gained the recognition of Charles II. In 1665 a large vote had been made, with the proviso that it should be expended on the war with Holland. Clarendon, regarding this as an encroachment on the royal prerogative, offered a strenuous opposition, but Charles refused to support him.' But the appropriation of supplies involved the audit of accounts in order to ensure that the intentions of Parliament had been carried out. In 1341 Edward III granted this principle also ; but the transitory character of the concession may be gathered from the fact that the Good. Parliament of 1376 found it necessary to repeat the demand. On two occasions in the early years of Richard II measures were taken, by the nomination of treasurers, to give effect to the practice ; and from the latter occasion treasurers of the subsidies were ordinarily appointed, who should account at the next Parliament for all the money received and paid out. In 1379 the king, or rather his representatives, had actually taken the initiative and ordered the accounts of the previous subsidy to be presented in Parliament.- Henry IV made one futile effort to defend his prerogative in this point. In 1406 he met a parlia- mentary demand for audit with the proud assertion that ' kings do not render accounts'; but in 1407 he thought it better to imitate the example of his predecessor and without further demand to lay the accounts before the Commons." The subsequent history of the principle of audit is to be found in the history of the previous principle of appropriation. Thus, in 1666 Parliament followed up its victory of the previous year by a demand for the appointment of a committee to inspect the accounts of the Treasury. This, however, was prevented by a prorogation ; and Charles intended to issue for the purpose a commission which he himself would be able to control. The fall of Clarendon interrupted his design ; and in the next year the Commons returning to the charge, forced the reluctant king to assent to a Bill appointing a committee of audit with extensive powers. One of its first results was the expulsion from the Commons of Sir George Carteret, the treasurer of the navy, for issuing money without legal warrant.'' v5 34. The origin of the share of the Commons in legis- THE HOUSE OF COMMONS IN ACTION 243 LATioN is to be found in the immemorial right of every Growth of subject to ])etition the Crown for redress of any griev- ^n*^ P"wer ance. By Edward I's direction, such petitions were divided House of into five bundles according as they concerned the Chancery, Commons the Exchequer, the Judges, and the King and Council, the J^Q^f^'^^'^' fifth portion comprising those which had been already dealt ^ with. Very shortly after the formation of the Model Par- liament these petitions seem to have been presented to the assembled Parliament, one of whose first duties came to be the appointment of receivers and triers for their considera- tion. Finally, under Richard II, a division of these petitions was made into three portions, of which one went to the king, another to the Council, and the third was laid before Parlia- ment itself. But they were all the petitions of individuals for redress of personal wrongs ; and their parallel is to be found in the 'Private Bills' of modern Parliaments, Acts for local purposes, such as the regulation of fisheries and the enclosure of commons, or for the authorization of semi-public bodies, such as commercial or railway companies. The authority of the Commons in the initiation of legislation for the public benefit arose from the fact that the petitions of an organized and representative body, though not differing in theory from those presented by a private individual, not only dealt with subjects of general interest, but could be emphasized in a manner which of necessity placed them at once upon a different footing. Nor did this method of public petition begin with the Parliament of the three Estates. From the Articles of the Barons which formed the foundation of Magna Carta, on through the Petition of the Barons which resulted in the Provisions of Oxford (1258), to the tw^elve articles of the Parliament of Lincoln (1301), and the eleven articles of 1309 which led to the appointment of the Lords Ordainers, the same principle was at work. In the last two cases the articles of • redress, though probably drawn by the barons, were presented in the name of the whole community : while in all four instances the grievances were chiefly such as affected the classes represented by the Commons. But the attitude of the barons was essentially that of councillors of the Crown. It was only in moments of popular excitement that they assumed the function of petitioners on behalf of the com- 244 ENGLISH CONSTITUTIONAL HISTORY munity. The Commons, on the other hand, were essentially petitioners, and they took advantage of every occasion on which they were called together, to accompany and, before long, to precede every grant of taxation with the presentation of a long list of petitions. Treatment At first there was little or no guarantee that these petitions of Com- would meet with any practical result. Even if the king so mons pe- . . . . , tiiions bv much as noticed any particular petition, he would give such the Crown, a verbal and evasive answer as to this day is recorded in the formula ' le roi s'avisera ' (the king will think about it), which is used in an exercise of the royal veto. It was not the question of the Commons' assent to legislative acts that was at issue. The necessity, or at least the advisability, of such assent was early recognized. The Act of 1322, which placed the assent of the 'commonalty of the realm.' on a level with that of the ' prelates, earls and barons,' no doubt much overstated the fact ; but it is not improbable that the Statute Quia Emptores was ' the last case in which the assent of the 1 .S'. C. H. Commons was taken for granted in legislation.' ' Henceforth § 224. their share was at least such as was expressed by the formula ' ad audiendum et ad faciendum ' (i.e. assent), which was inserted in their writs of summons to Parliament. But the Commons desired that their petitions should form the founda- tion of legislation and were thus, unconsciously perhaps, aiming at encroaching upon that initiatory power which had hitherto been a monopoly of the Crown in Council. It was the financial needs of Edward III which gave the Commons the opportunity of making good the first steps in the progress towards legislative supremacy. The king himself started them on their course when he began the custom of declaring at the opening of Parliament, by the mouth of his Chancellor, his readiness to receive the petitions of his people. But this apparent readiness was by itself of little worth. It might at the best lead the king to give some answer to his suppliant Commons ; but even if he caused their petition to be embodied in the permanent form of a Statute instead of the purely transitory and revocable Ordinance, the duty of drafting the measure lay with the judges, and it was easy for the king to direct them to omit the chief point of the petition, or to insert such a clause as would rob the whole statute of its value. THE IIOUSK OF COMMONS IN ACTION 245 Nor did tin- king stop liere. There is only one case of the entire revocation of a duly enacted statute ; but the prerogative power of dispensation was scarcely less effective in reducing it to impotence. The Commons attempted to intercept the king at every turn. The Com- They refused to grant supplies until they had received answers ^ona' to their petitions : they even tried to make the grant upon o/defence conditions : they demanded that the royal answers should be formulated in writing and sealed before Parliament was dis- missed. The royal method of nullifying enacted statutes was met with no less boldness and ingenuity. The Commons complained again and again of the non-observance of certain statutes, until under Edward III it became a custom to place first on the list presented to the king a petition for the ratification of the Great Charter. With the instinctive feeling that the assertion of principles was in the long run more important than the capture of a momentary advantage, they gave an ' ex post facto ' legislative sanction to many of the king's most arbitrary acts. This amounted to a protest in favour of a monopoly of legislative action by Parliament, which the Good Parliament capped by a strong assertion of the power of Parliament alone to repeal a statute once enacted.^ But none ^ ^ot. Pari. of these measures proved really effectual. Indeed, it was ^^^'^44- the attitude of the Commons as petitioners which was at fault, and the only real remedy lay in the discovery of a new method of initiating legislation. To a petition of the Com- mons against the enactment of statutes without their consent, Henry V replied that ' from henceforth nothing be enacted to the petitions of his Commune that be contrary of their asking, whereby they should be bound without their assent ' ; but the empty formula only witnesses to the evil for which the Commons were seeking a remedy.- This they found in '^ S. C. H. a method of initiation employed by the Crown, and thus § ^90- transfixed the royal archer with an arrow stolen from his own well-provided quiver. In order to facilitate the passage of bills which originated with himself and his Council, it seems to have been the custom of the king to present them to the two Houses already drawn up in the form in which they were to appear upon the Statute Book. In order that the time of Parliament should not be wasted, the same privilege was 246 ENGLISH CONSTITUTIONAL HISTORY extended to legislation which was railed forth by the petitions of individuals. In the reign of Henry VI the Commons iidopted the same form for matters of public importance, and by drawing up their petition ' formam actus in se continens ' (i.e. in the form of a statute) they not only forced the Crown to submit every proposed alteration in it to their judgement, but left the king no alternative between acceptance or rejection ' S. C. H. of the measure as it stood.' It has been pointed out that this V, 440. j^g^^, method of legislation by Bill ' really laid the foundation - Anson, of the omnipotence of Parliament.'- For the first time it drew 1- 243. ^ strong line between the Executive and the Legislature, and by transferring to the latter the power of initiation hitherto enjoyed by the Crown, it formed the first breach in the walls of that strong administrative fortress whose entire defences were not captured until the Revolution of t68S. Hindrances gyj: it was only the first breach, and that of not very service- mons. ^^'s dimensions. Time alone could show its value. For (i) Attitude ^ ^^"g while yet there were hindrances to the complete of the exercise of the Commons' power of initiating legislation. Lords ; They had not to fear the king alone. .All the other Estates were jealous. The Lords were not only an Estate of the realm : they were also hereditary councillors of the Crown. Moreover they had been members of an organized body, the Commune Concilium, long before the Commons had appeared upon the scene. Although occasionally they seem to have joined the Commons as petitioners, laws were at first enacted with their counsel and assent ; and for the first century after the incorporation of the Commons in Parliament, the Lords must have acted rather as royal councillors, debating the petitions of the Commons and advising the king as to his answers, than as an Estate of the realm with at the most only a concurrent power of initiation with that claimed by the (2) of the representative body. The attitude of the Clergy was also Clergy ; doubtful. They had their own organization in Convocation, with certain powers of separate legislation. By the middle of the fourteenth century they alone shared with the Commons the control of the purse. Moreover, while the Lancastrian House posed as the champions of orthodoxy, the Church was throwing herself more and more under the protection of the Crown. There was great cause for fear lest the king should THE HOUSE OF COMMONS IN ACTION 247 use the clergy, as he liad used the Pope and the h(idy of merchants, to clieckmate the Commons. And, to judge from petitions presented by the Commons in 1344 and 1377, it would seem that the king had occasionally made statutes at the desire of the clergy without submitting them to the approval of Parliament. It is possible also that clerical protests against contemplated parliamentary legislation, although often a matter of form, sometimes influenced a decision of the Commons.' But the clergy stood completely apart from ' ■^'- ^- ^• parliamentary struggles, and wisely followed the lead of the ^ ^^•^' Commons. As a result, save for an occasional suggestion for the confiscation of their revenues, they were unmolested, and even continued until the Restoration to vote their share of the taxes in their own assembly of Convocation. A far more real hindrance to the legislative power of the (3) of t^^e Commons than any offered by the Lords or the Clergy, cam* Crown by from the necessary attitude of the king. At a time when n^ncel^ '" Parliaments were intermittent it was indispensable that the executive should be armed with powers of temporary legisla- tion. Moreover, before the advent of Parliament, the king with his Council had been executive and legislature in one. All early legislation was intended to meet a temporary emergency. The frequent recurrence of similar circumstances would cause such a temporary enactment to assume a per- manent form. Thus there was no reason why in his Ordi- nances, issued with the advice of his Council, the king should distinguish between the assertions of a general principle and the satisfaction of a momentary need. The only recognition of a difference is to be found in the submission to the formal assent of the Commune Concilium of those more important matters which, under Henry II, were embodied in the form of Assizes. It is probable that the first real attempt to distinguish between temporary and permanent legislation dates from the arrangements made by Edward I for the sorting of petitions, and the existence of this difference was marked by the submission of those of more general interest to the consideration of the assembled Parliament. Then when Parliament itself began to petition, necessarily on matters of national importance, it was impossible to ignore the fact that the legislative power had become something more than a mere 248 ENGLISH CONSTITUTIONAL HISTORY stop-gap. The Assizes of Henry II and the Provisions of Henry III gave way to the Statutes of Edward I ; but it was entirely against the king's interest to allow any hard-and-fast distinction between the binding force of an Ordinance and of a Statute respectively. Indeed, Edward I seems to have succeeded so well in his endeavour to prevent this, that from his time not only had the royal Ordinances ' been allowed to have very much the same force as the statutes themselves,' but 'until the great enunciation of the right of Parliament in 1322, it might be questioned whether those Ordinances were not laws within the letter of the constitution, and the acquiescence of the Parliaments might be reasonably construed as an admis- ^ S. C. H. sion of the fact.' ' It was the extreme shiftiness of the king's §259- conduct in his method of dealing with their petitions, that probably caused the Commons to emphasize the difference between the temporary and the permanent form. Here, as in the companion matter of taxation, the reign of Edward III supplied the Commons with abundant opportunity ; and the free use of the royal Council to evade the answered petitions of Parliament brought out clearly the essential difference between the king's method of action in his Council and that form of legislation which was soon to be appropriated by Parliament itself. So long as the Commons remained in the position of petitioners it lay largely with the king whether his answers to the petitions should be couched in the form of Ordinance or of Statute. In 1363 the Commons themselves 2 j'?^/. /"«;-/. chose the form of Ordinance" as giving more opportunity ii. 280, § 39. for future modification. On the other hand, when in 1353 the Ordinance of the Staple was sanctioned by a Magnum Concilium which contained an imperfect representation of the Commons, the protests of those who were present forced the king to summon a properly constituted Parliament for the next year in order to convert it into a statute. The result of these struggles was to deepen the growing distinction between the Executive and the Legislature, and to emphasize the difference between the method of operation pursued by the King-in- Council and that which alone was worthy of the sovereign body of the realm, the King-in-Parliament. Thus while a Statute was 'a law or an amendment of law, enacted by King-in- Parliament and enrolled in the Statute Roll, not to be altered, THE HOUSE OF COMMONS IN ACTION 249 repealed, or suspended without authority of the Parliament, ' and valid in all particulars until it has been so revoked" — ^S.C.//. in other words, a legislative Act intended to be perpetual in ^ ^^^' operation — the Ordinance became essentially the act of an administrative body, devised to meet a temporary emergency. How far the upholders of the royal prerogative were still willing to press the efificacy of this latter power may be judged not only from a petition of the Commons in 1389, praying that the Council may not, after Parliament has dispersed, make any Ordinance contrary to the Common or Statute law, but also from one of the charges against Richard II, that he had maintained that the laws were in his mouth and often in his breast, and that he alone could change and frame them. While the Lancastrians were under the dominion of Parlia- Proclama- ment, their successors did their best to dispense with Parliament ^'°"^- altogether. But in either case the contest between Statute and Ordinance was unequal. And when Henry VIII began Under the to appeal reg,ularly to the representatives of the people, Tudors. he actually employed Parliament itself to wipe out a distinction on the maintenance of which its whole legislative power de- pended. The exact force of the Statute of Proclamations has ^} Henry been much disputed. It enacted that the king's Proclamations n-^g" ' ' (as Ordinances were now called), made with the assent of his Council, ' should be observed and kept as though they were made by an Act of Parliament.' A proviso was added to the effect that such proclamations must not be 'prejudicial to any person's inheritance, ofifices, liberty, goods and chattels,' or infringe the established laws ; and this has been construed as an attempt of the Commons to limit a power which was in any case certain to be used illegally. However that may be, the statute was repealed in the first year of Edward VI's reign. Proclamations, however, were continually used and enforced by all kinds of penalties, such as fine, imprisonment, and even labour on the galleys. They were issued by the Council and their breach was taken cognizance of by the Star Chamber, so that in reality they created new crimes unknown to the law of the land. Thus, in religious matters, the Council of Edward VI ordered justices of the peace to ' commit to the galley sowers and tellers abroad of vain and forged tales and lies ' : Mary 250 ENGLISH CONSTITUTIONAL HISTORY Under the Stuarts. ^ Prothero, 280-281. - Gardiner, ii. 104. denounced the penalties of martial law against the possessors of heretical books : Elizabeth by this means banished Ana- baptists and Irish from the country. In the economic sphere, Edward's Council regulated the price of provisions ; Mary imposed duties on foreign cloth and French wines, while Elizabeth prohibited the cultivation of woad, the exportation of corn and money, and the building of houses within three miles of London. Already in the reign of Mary the legality of these proclamations was disputed, and the judges carefully limited their use to the exposition of existing law. ' The king,' they said, ' may make a proclamation quoad terroran populi to put them in fear of his displeasure, but not to impose any fine, forfeiture or imprisonment ; for no proclamation can make a new law, but only confirm and ratify an ancient one.' But this plain statement deterred neither Elizabeth nor her successor from the use of proclamations. Indeed under James they were so numerous — being issued to forbid the election of outlaws and the inclusion by the sheriff of ancient or depopu- lated towns in the first Parliament of the reign ; ^ to interfere with freedom of trade by the levy of new customs duties unsanctioned by Parliament ; to prohibit the increase of London, and to enforce the residence of the gentry in the provinces — that in 1610 they called forth the remonstrance of Parliament. In answer, James claimed, in cases of emergency and during the abeyance of Parliament, the right of issuing proclamations which went beyond the law. He promised, however, to consult the judges ; and the matter was submitted to Chief Justice Coke and three others, who, despite the utmost pressure of the Court, decided (a) that the king by his proclamation cannot create any offence which was not one before ; but he may for the prevention of offences, admonish his subjects to keep the law, and the neglect of such proclama- tion aggravates the offence ; thus, they add, if an offence be not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it so : while, in answer to the royal claim to override the existing law, they asserted {b) that the king has no prerogative except what the law of the land allows him." This may be said to sum up the whole question at issue between king and Parliament in the seventeenth century. James did not publish the decision ; but probably no subse- THE itousf: of co.^[^roNS ix action 251 qucnt proclamations were issued which imposed penalties such as fine and imprisonment. In some form, however, proclama- tions were still in use, and so long as the Star Chamber lasted, it did not hesitate to inflict a penalty where none had been legally applied. But, despite many compensating advantages, it is a weakness « of the English Constitution that the executive is only able to act within the limits of the law of the land. If ministers step Their outside the law, they do it at their peril ; and moments of "^o^'*^''" "'^^• emergency find them shrinking from the responsibility which they incur by intruding into the special province of a most jealous assembly. Thus, in 1766, in what is known as Chatham's Second Administration, the ministers being desirous of meeting beforehand the distress which would be occasioned by the bad harvest, issued two proclamations — one for the revival of certain old economic regulations against forestallers and regraters, which as a reminder of existing law fell within the definition of the judges ; another, which directly annulled the existing law for the free export of corn by laying an embargo on all ships laden with wheat. The only defence which the ministers could make was the necessity of immediate action : the proclamations were withdrawn, and Parliament was with difficulty persuaded to pass an Act of Indemnity.^ Such, then, 1 Anson, is the only method of action possible to an English minister, i. 309-310- He must on an emergency adopt Luther's motto, ' Pecca fortiter' (i.e. break the law boldly), and the safeguard against rash action on his part is the knowledge that his acts must be subsequently covered by an indemnity from Parliament, whose judgement, moreover, will be pronounced after the event. Perhaps the most subtle hindrance to the legislative power (/;) The dis- of the Commons came from the royal claim to dispense with, pensing . . power. or even entirely to suspend, the operation of particular statutes. The claim was founded on the view of the king as the supreme and sole lawgiver. The maker of the laws, it was argued, could either dispense with their operation in individual cases, or even unmake them altogether. No one questioned the royal right of pardoning a criminal ; and if the king could remit a punishment after sentence had been passed, much more should he be able to release a lawbreaker beforehand from the consequences of his act. The philosophical historian 252 ENGLISH CONSTITUTIONAL HISTORY might find a justification for the exercise of this power of the prerogative in the hardship which must often have ensued in individual cases from the hastily drawn and crudely expressed statutes of a medieeval Parliament. But the whole endeavour of the Commons was, as we have just seen, to substitute the King-in-Parliament for the King-in-Council as the supreme legislative body ; while all the available evidence goes to prove that the power of dispensing with the laws in individual cases was used rather to forward the private aims of the king and those who could influence him, than to remedy the inequality of the laws in the interest of justice. In one of the four Parliaments of 1328 the Statute of Northampton restricted the royal prerogative of dispensation. But yet, in 1330, in 1347, and again in 1351, the Commons petitioned against the use of this power for the issue of charters of pardon, or rather of license beforehand, to a large number of common malefactors. Indeed, these petitions stand side by side with those against the sale of writs in Chancery and the extended jurisdiction of the Council. Another Act, of 1390, prohibits the indiscriminate grant of pardons. But the exercise of this necessary right was a matter of discretion, which could not be regulated by statute. Accordingly, the law courts set to work, and the great judges of the Lancastrian time drew a distinction between mala in se or violations of divine law such as murder and robbery, in which cases they denied the royal power of dispensation ; and mala prohibita or crimes created by statute, where they thought the king's power to hold good. They further denied the law- fulness of the power when exercised against common law crimes, i.e. those in which the original common law had been confirmed by statute, or against the rights of individuals or corporations. In short, the king's prerogative was unable to set at nought the moral law, or to pardon one man for an offence against another. . The king could only use his power to excuse an injury against himself or an illegal act from which no one had derived any harm. But when political questions were concerned the majority of the Stuart judges set aside these subtle distinctions, and decided the whole matter from the standpoint of divine right. Thus in the case of Thomas 1 . V. Sorrell ' the king in the interest of trade granted a dis- i. 315- ' pensation from penalties provided for his benefit,'^ and the 1674. THE HOUSE OF COMMONS IN ACTION 253 judges rightly upheld the royal prerogative on the ground that no third party had received an injury. But they equally upheld it in the test case of Goddcii v. Hales. Here a Roman ('atholic officer pleaded a dispensation from James II for his omission to conform to the requirements of the Test Act, and the judges based their decision on several grounds — that the kings of England were sovereign princes ; the laws were the king's laws, it was therefore an inseparable part of his preroga- tive to be able to dispense with particular laws in particular cases : of the need of such dispensation the king was the judge ; and finally, this was an ancient remnant of the prerogative of the king and could not be taken away from him, since it was not a power given him by the people. It is a marvellous testimony to the self-restraint of the authors of the Bill of Rights that, instead of denying the dispensing power altogether, they contented themselves with a condemnation of its illegality 'as it hath been assumed and exercised of late,' and with a declaration of its future invalidity unless Parlianient had made provision for such power in the terms of the statute so violated. As a result, apart from the licence of Parliament itself, the only lawful dispensations are such as may have been granted before James II and were not covered by the words of the Bill of Rights. Cases of these are so few as to be of no practical importance.^ 1 Anson, i. But if the philosophical historian could discover some 314-316. justification for the exercise of the dispensing power, he would (c) The sus- find nothing to urge in favour of the claim to suspend the pending operation of a statute in the case of a whole class ; for this was nothing else than an abolition of the law. Yet the exercise of this power was by no means unknown. The earliest instance was probably the omission from the reissue in 12 16, of those financial and constitutional clauses of the Great Charter which were among its most valuable provisions. But the circum- stances were exceptional. It is in connection with religious questions that this prerogative has in almost every instance been employed. This was the means by which the Pope obtained an occasional relaxation of the statutes by which an angry Parliament prohibited papal taxation ; while, after the Reformation, the Stuart kings used it to shield the Roman p ^.V Catholics from the penal laws." Under James I and his son 422. 254 ENGLISH CONSTITUTIONAL HISTORY 1662. 1672. ' Anson, i- 317-319- Control of the general administra- tion by the Commons. Parliament made freciuent remonstrances. But their foreign policy as well as their natural inclinations dictated their line of conduct to these kings, and the results of their leniency were not serious. It was under the later Stuarts that the power assumed dangerous proportions. Charles II's Declarations of Indulgence had to be withdrawn ; but James II, acting on the opinion of his prerogative set forth by the judges in Godden v. I/aies, not only issued a Declaration by which he ' immediately suspended . . . the exercise of all and all manner of penal laws ecclesiastical, for not coming to church, or for not receiving the sacrament, or for any other nonconformity to the religion established,' but he even commanded that it should be read in the parish churches. The trial of the seven bishops who petitioned against it, and their triumphant acquittal, sounded the knell both of James' tenure of the throne and of the inter- pretation which he had put on the royal power ; and the first clause of the Bill of Rights condemns as illegal 'the pretended power of suspending of laws or the execution of laws by regal authority, without consent of Parliament." § 35. The attempt of the Commons to obtain control over the two most important functions of government — the enact- ment or amendment of laws and the assessment of taxes — practically involved an interference in every department of the executive. The extent to which this was carried may be gathered from the subjects of the numerous petitions which were presented by every Parliament to the king. Despite their many merits, we may set aside the Articles of the Barons in 12 15, and the Petition of the Barons in 1258, as being largely occupied with old grievances arising from the undue exercise of feudal rights and the influence of aliens on the Crown. The best early instances of petitions of national importance are to be found in those presented in the Parlia- ment of Lincoln in 1301, the Parliaments of 1309 and of 134I1 and above all in the Good Parliament of 1376. An analysis of the hundred and forty petitions which emanated from the latter seems to prove that no point of national administration was considered as outside its supervision. The directly feudal grievances have disapi)eared ; but it is still, and for a long time remains, necessary to protest against the abuses of purveyance, the jurisdiction of the Courts of the Steward and the Marshall, THK HOUSE OF COMMONS IN ACTION 255 the method of appointing sheriffs. The presence of the Commons has placed in the forefront some comparatively new- questions, such as the Pope's interference in the National Church, the freedom of election to Parliament, and all matters connected with the regulation of labour. A general survey of the petitions seems to show ' that the government was ill ad- ministered rather than that any resolute project for retarding the growth of popular freedom was entertained by the adminis- trators." And herein lay the danger of the situation. It has ^ S. C. //. been remarked that ' half the struggles of the Middle Ages § ^^^ ^"^" originated in the uncertainty of the line drawn between the executive and the legislative.'- For, the king had been trained ^ ^^- -^'^'^• to regard the country as a property to be administered for ^ ^ his own benefit ; while the legislature sought a real instead of merely theoretical power. Consequently, while the king resented any interference with his prerogatives, Parliament, not knowing where to stop, claimed such purely executive functions as the election of ministers, the regulation of the royal house- hold and of its own summons. The struggle resolved itself into a contest for the sovereign power in the State. But in fairness to the Crown it must be said that, however minutely the Commons inquired into the details of adminis- tration, they shrank from direct responsibility. This may be illustrated in two departments. The last point on which a popular assembly would be qualified to judge would be in questions of foreign politics. Nor were the Commons asked (i) Foreign to do so, until Edward III, in want of their money, sought to po^'^^*^^- implicate them in his warlike projects. At first they were lavish in their grants and seem to have been prepared to share the responsibility for war with the king. In 1338 Edward asserted that his expedition was made not only with the assent of the Lords, but at the earnest request of the Commons. This may have been the turning-point ; for in the very next year the Commons declared that they were not bound to 1339. give advice on matters of which they had no knowledge.^ •' Rot. Pari. In 1348 they made their ignorance and simplicity a plea for"- '°5' § "• declining to express an opinion, and referred the king to the advice of the great and wise men of the Council.^ In 1354 ■• //'/(Z. ii. they replied to a request for their opinion on the pending "^5' ^ 5- treaty, that 'whatever issue the king and the Lords might 256 ENGLISH CONSTITUTIONAL HISTORY ]-Roi. Pari, please to take of the said treaty would be agreeable to them." ''^^ "Under Richard II they pursued a similar course, in 1382 2 Ibid. iii. referring the ciuestion of an expedition to the Lords,- and in 145. S 9- J 284 trying to make out that the French war was a personal =' Ibid. iii. quarrel of the king." But the grudging nature of their supplies, 170, § I . and the attempts to establish the principles of appropriation and audit, sufficiently proved the distrust of a warlike policy which •* S. C. H. Edward Ill's extravagance had implanted in them.'* Under § ^94- the Lancastrians the changed position of Parliament made the Commons bolder in the matter of accepting responsibility. They supported Henry V's war as loyally as their predecessors in the early years of Edward III. They joined in the ratifica- tion of the treaty of 1416 between Henry and the Emperor Sigismund, and in the treaty of Troyes in 1420 ; while in 1446 they consented to the repeal of that article in the latter which required the assent of Parliament to any treaty of peace ^ Ibid. between the two kings. ^ Foreign politics were among the § 3 9- subjects with which the Tudor and Stuart sovereigns forbade Parliament to meddle. There was much to be said for their contention ; but it was the anti-national attitude of the Stuarts which forced Parliament to take part in a discussion for which they were of necessity insufficiently provided. A second illustration of the timid conduct of the early (2) The law Commons is found in their attitude towards judicial matters. courts. p^ celebrated article of Magna Carta (§ 40) had made the king promise that he would not^" sell, deny or defer right or justice.' It was in their desire to maintain this that the Commons found their justification for the review to which they subjected the action of the law courts. The king, moreover, invited their participation in judicial questions ; and it became very usual for the Chancellor, in opening Parliament, to demand on behalf of the Crown the advice of the Estates as to the best means of maintaining the public peace. In response to this request the Commons, from the early years of I'Mvvard Ill's reign to the dark days which preceded the Wars of the Roses, never ceased to point out in their petitions the administrative abuses which stood in need of reform — the indiscriminate sale of writs in Chancery for the authorization of all kinds of illegal acts ; the interference of the Privy Council with the ordinary course of the law ; the extension of the jurisdiction of the THE HOUSE OF COMMONS IN ACTION 257 Courts of the Steward, the Constable and the Marshal beyond the limits imposed on them by the ArtiCuli super Cartas (1300) • the attempted revival of the old feudal jurisdictions supported by the extensive practices of livery and maintenance ; the corrupt conduct of the judges of assize and the sheriffs. These complaints were not coupled with demands for new legislation ; they were merely petitions that the existing laws should be justly administered. But the Commons never aimed at direct judicial authority.^ It seems as if they shrank from the re- ' S. C. H. sponsibility which it would entail ; for, although instances are ^ ^95- to be found in which the Commons listened to the complaints of individuals against great officials, the fact that most ministers were peers gave their trial of necessity to the House of Lords, while the Commons' attitude of petitioners determined their part in an impeachment to be that of accusers before the natural judges. Indeed, on the deposition of Richard II, the Commons once for all repudiated for themselves the position of judges. Once or twice subsequently, in moments of passion, as in the case oi Floyd (162 1), whom they ordered to pay ;!^iooo and to be put in the pillory for expressing delight at the defeat of the Elector Palatine ; " and again in the case - Hallam, of Mist (1721), ^ a printer whom they committed to Newgate V, 3°°"302. for publishing a journal in which some hope was expressed for 337-339.' the restoration of the Stuarts, the Commons have violated •' Hallam, their own principle, and have arrogated to themselves the "'■ ^79- functions of a law court. Otherwise, their judicial authority has been e.xercised merely in cases of breach of privilege, which will presently demand notice. The supervision of the Commons over the general adminis- tration was of little effect so long as they were unorganized and the ministers were in every sense the servants of the Crown. It was not until the discovery of the method of Cabinet govern- ment that a real and effective supervision of the administration was secured. It remains to be proved whether the present system of minute interference does not impose an impossible burden on the ministers to whom it is applied, and deprive them of that sense of personal responsibility which is necessary to draw out all the greatest qualities of a first-rate adminis- trator. The § 36. The progress of the Commons was threatened from Commons s 258 ENGLISH CONSTITUTIONAL HISTORY protect themselves against the Crown, by (i) Fixing the meeting of Parlia- ment. 1 S. C. H. §409- Duration of Parlia- ment. ■■' Ihid. §§412- 414. =' S. C. 302 two sides. We have already noticed the methods by which the Crowfi sought to preserve a subservient Parliament. The Commons fortified themselves against these insidious attacks, partly by trying to provide for regular meetings of Parliament, partly by the assertion of privileges without which no member was able to act freely. No less necessary was it for the Commons to define their position in relation to the House of Lords. The two Houses had plenty of common interests, but the older and socially superior body struggled to maintain its political position. The twie of yea?- at which Parliament should meet was governed by non-political considerations. It was a combina- tion of three determining causes. The charters of Anglo- Saxon Witenagemots are dated at the great C/mrch Festivals of Christmas, Easter and 'Whitsuntide, a custom which was imitated by the Norman kings in their three crown-wearing seasons at Winchester, Westminster and Gloucester respectively. But one of the chief duties of the Commune Concilium was the decision of judicial matters, and since the legal terms, derived from the Roman divisions into ' dies fasti ' and ' dies nefasti,' had been made to coincide with the festivals of the Church, this custom was maintained ; while the lawyer element which early predominated in Parliament, ensured the continu- ance of so convenient a time. But the greatest determinant in the Middle Ages was the Harvest, during which the schools and law courts were closed, and not only was Parliament pro- rogued or adjourned, but even civil war was suspended.' All other matters connected with the summons of Parliament rested with the king and his councillors. Thus, although the assembly was ordinarily held at Westminster, special circum- stances often caused its summons elsewhere, as when the Scotch wars made it convenient for the king that Parliament should meet at York. As a matter of fact, most of the great towns were chosen in turn, but there was always some temporary reason for a deviation from London.- Again, in 1258 the Provisions of O.xford had directed the calling of three Parliaments every year.^ These were baronial councils for discharging the judicial functions of the Commune Concilium, and as such they were maintained by Edward I. But for the summons of a Parliament of the three Estates tliis was THE HOUSE OF COMMONS IN ACTION 259 far too often. For while, on the one side, the Commons felt representation to be a burden and regarded frequent sum- monses merely as frequent demands for money, the king, though he wished to get the money as often as he could, yet did not care to hear the grievances of the assembled nation more often than he was obliged. Thus, while at ordinary times it was with the greatest difficulty that any one could be induced to undertak(?the function of a member of Parliament, in moments of popular excitement demands were made for annual assem- blies, and the provision of the Ordinances in 1311,^ followed ^ Rot. Pari. by Acts of 1330 and 1362, established annual Parliaments '• ?,^5> §29- as the rule. But how little the king felt himself bound by c. 14. these enactments, is clear from the numerous exceptions to 36 Edw. this rule. Under Edward III was discovered the expedient • ^' ^°' of voting supplies for two or three years together; while, as Parliament advanced in power, a wealthier class of persons was willing to be returned as members. They were not in such haste as their poorer predecessors to return to neglected businesses ; sessions could become longer and prorogations more frequent. Thus more business was despatched ; larger supplies were voted ; and it was not so necessary to call Parliament every year. The Acts of 1330 and 1362 provided for the summons of more than one Parliament, if necessary, in the course of the same year. In 1328 no less than four assemblies had been called. In 1332 and in 1340 Parliament came together three times within the twelve months, and twice in 1334 and again in 1352. But as each assembly was preceded by a fresh election, and as the members were paid according to the number of days on which the Parliament sat, these frequent sessions were so unwelcome as to occasion a petition in 1380 from both Houses that they should not be called together for another year.- "' ^- ^- ^^• On the accession of the Yorkists the occasional intermission ^^ ^ ' '+ of Parliament passed into a regular practice, and was only rescinded when Henry VIII desired the co-operation of the people in his religious changes. Under Charles I the evident intention of the Crown to return to the custom of the Yorkists, produced the Triennial Act of the Long Parliament (Feb. Triennial 1641). This provided that if the king neglected to summon 16^ Car. I. a Parliament for three years after the meeting of the last c. i. 260 ENGLISH CONSTITUTIONAL HISTORY Parliament, the Chancellor or, failing him, the peers or, in the event of their neglect, the sheriffs and mayors might issue writs, and if all officials failed in this duty, the electors them- selves should proceed to choose representatives ; while, except with its own consent, the new Parliament might not be pro- J Gardiner, rogued for fifty days.^ The Act w-as repealed after the Re- Coust. storation ; but a desire was expressed that Parliament should 74-'84 "'-'^ ^^ intermitted for more than three years at a time. The experience of the reign of Charles II showed that a prolonged Parliament might be as mischievous to public liberty as no 1660-1677. Parliament at all : for the ' Pensionary Parliament' sat for seven- teen years. Yet the authors of the Bill of Rights contented themselves with the assertion that ' for the redress of grievances, and for the amending, strengthening, and preserving of the - S. C. 525, laws. Parliament ought to be held frequently."-^ * ^3" So long as the Crown retained the right of summoning Par- liament, the intermission of the Assembly could be dealt with 6 t\: 7 Will, only indirectly ; but in 1694 a second Triennial Act put a limit and Mary, to the existence of any individual Parliament : while in May ^'^' . , 1 7 1 6 this limit was further increased by the Sepiefinial Act. Septennial _' ,11 ■ , Act. Numerous have been the attempts m the present century to I Geo. I. effect its repeal ; some, like those of the Chartists, in favour St- 2, b 3 . Q^ annual Parliaments, some with a view to the modification of the present length. Custom has reduced the time to an average of about six years' duration, and the apprehensions roused by the coming election take off almost another year from the effectiveness of the work done by the House of Commons. Until 1696 the demise of the Crown put an end to the existing Parliament ; but an Act of that year provided 7 & 8 Will. ^Yi^^ it should continue for six months after the death of the ' ' ^ ' reigning monarch, while an Act of 1797 revived the old Parlia- 37 Geo. III. . . c. 127, ment for six months m the event of the monarch's death just s. 34- ■ after its dissolution. Finally, by the Representation of the 30 cV 31 People Act (1867), no dissolution of Parliament is necessary at § 51. ' future demises of the Crown. (2) Assert- § 37- The second method by which the Commons have tried \ng privi- to protect themselves against the direct attacks of the Crown, is Par^'ianient ^^^^ assertion and maintenance of Privileges ok Parliament. Proihero Since the reign of Henry VIII it has been the custom, at the l.xxxvii. commencement of every Parliament, for the Speaker to demand THE HOUSE OF COMMONS IN ACTION 26 1 from the Crown on behalf of the Commons a confirmation of ' their ancient and undoubted rights and privileges.' ^ But these ' Prothero, privileges are not regarded as in any sense depending on l-'^'^xvii. a grant from the Crown ; and an assertion of the attitude of the House in this respect still survives in the custom of taking the first reading of some Bill before it enters on the discussion of the speech from the throne. The Speaker then claims in particular for the members of the House ' that their persons and servants might ht free from arrests and molestations ; that they may enjoy liberty of speech in all their debates ; may have collective access to his Majesty's royal person whenever occasion shall require : and that all their proceedings may receive from his Majesty the most favourable cotistruction.^ '^ But beyond these - Erskine privileges the House has acquired certain rights necessary for ^^.y, Parlt. the proper maintenance of its dignity, but not claimed in words ..-,_ ' from the Crown. These have been most carefully enumerated Anson, i. as the right to provide for its own constitution ; the right to ^4o- exclusive cogjiizance of all that takes place within the House : and the right of inflicting punishment for breach of privilege.^ ^ ^ Anson, i. Many of these will be found to include lesser rights which, in '"^ '^^ ^^'l- process of time, have grown out of them. Of the first set of privileges — those demanded by the Speaker Formal — two are purely formal. 'The most favourable construction ' P"^' ^^^^' has been described as ' not a constitutional right but a personal courtesy ' ; for while, on the one side, the Crown can take no notice of anything said or done inside the House, on the other side the right of freedom of speech affords sufficient guarantee against any active interference with members of the Commons. But it does not follow that in the days of the greater personal influence of the Crown, this demand was useless. Again, although ' the right of access to the Crown ' is only enjoyed collectively by the whole House, yet those members of the Commons who are Privy Councillors, are as much entitled to a personal audience of the monarch as are the peers themselves. Far different was it with the first two rights claimed by the Speaker. The claims made under the heads of freedom from Freedom arrest and liberty of speech were in course of time considerably ''"o"'' ■^ '^ . arrest. extended. Thus, the recognition of freedom from arrest has 4 r. ^ ^ been dated back to a law of ^thelberht ^ at the end of the sixth century, while Cnut certainly extends his special protec- 262 ENGLISH CONSTITUTIONAL HISTORY ^S. C. 74- Extension of the privilege. 1847. 5 Hen. IV. c. 6. iiHen. VL c. II. 2 S. C. H. §452. Prothero, 128. ^ Prothero, 320-324. I Jas. I. 12 & 13 Will. III. c. 3- 10 Geo. Ill c. 50. tion over those going to and from the ' gemot.' ^ Indeed, it was a necessary precaution to ensure the safe arrival and departure, and the regular attendance of members. But the extent of the privilege was most indeterminate. In the first place, it is mere prescriptive custom which has fixed the time spent ' eundo ' or ' exinde redeundo ' at forty days each. Such was allowed in the case of Mr. Buncombe, and has been indirectly confirmed by several Acts of Parliament. But the Lords claim only twenty days ; and there are cases in the sixteenth century which seem to show that only twenty days or even fewer were then thought sufficient for the Commons. In the next place, from its earliest recognition the privilege seems to have been held to include the servants and the estates of members. This extension was confirmed by statute in the particular case of Richard Chedder, a member's servant who had been assaulted, and generally in an Act of 1433. It was also applied to exempt those who claimed it from legal arrest and from being impleaded in civil suits. The former was asserted in the cases of Clerk (1460), Atwyll (1477), Ferrer (1543), Martin (1587), and Neale (1594), members, and those of Lark (1429) and Smalky (1575), servants.- Finally, the celebrated case of Sir Thof?ias Shirley (1603) was followed by the first distinct legislative acknowledgment of the right of freedom from arrest.^ The privilege of not heijig impleaded in civil suits seems to have been acknowledged as early as 1290 ; and, despite some instances to the contrary, it was successfully claimed as a prescriptive right in the case of Atwyll, quoted above, and was maintained either by writs of ' supersedeas,' such as those issued by Edward II in 13 14 to stay all actions against members in their absence, or in the seventeenth cen- tury by a letter of the Speaker to the judges to the same effect. Members sometimes waived the privilege, and the law courts did not always let it go unquestioned ; but it was sufficiently obnoxious to the course of justice to necessitate its removal by legislation. A series of statutes, commencing in 1700 and ending in 1770, first allowed actions to be begun against any person entitled to privilege in the principal courts of Common law and Equity at certain times, such as a dis- solution, prorogation or an adjournment for more than fourteen days. They then extended this right of trial to all courts of THE HOUSE OF COMMONS IN ACTION 263 record, and finally not only allowed any action to be tried at any time against privileged persons, but withdrew from their servants the privilege of freedom from arrest and im])rison- ment, saving it only for the persons of the members them- selves.i Yet to this day the Speaker claims immunity for the ' Anson, servants of members, and it has been conjectured- that it .'; JSo-JS'- might still be asserted for servants in actual attendance on ^i^ Parlt. members at the House. Until 1853 the Speaker also claimed Practice, immunitv for the estates of members ; but the Commons wisely ^'^" ^"•' -05 note, waived the right, and the word was for the future omitted from the demand. It is perhaps a natural extension of the privilege which releases out of custody for a civil action, a member elected while he is under restraint. Finally, privilege of Parliament was held to include freedom from the necessity of obeying a subpoena to serve as a witness, and from the liability to jury service. The first claim does not seem to have arisen until the end of the sixteenth century ; •' it was f Instances only with some difficulty established, and has now been '" Prothero, waived : the latter has been more willingly allowed by the ' law courts, and now rests upon an Act of 1870. 33 & 34 Side by side with these extensions should be set certain ^^'^^- ^- 77. exceptions to the privilege. [^ Ttus freedom from arrest has never been held to apply to a member charged with treason, Exceptions. felony, or breach of the peace. It is limited to misdemeanours and civil causes. This was laid down by the judges in Thorpe's case ^ ^ Pike, 249. {1453), and was recognised by more than one resolution of the House itself (1675, ^697). Again, by an Act of 1849, bankrupt 12 & 13 members were exempted from arrest during the period of their ^^^^- c- 106. privilege; but by the Bankruptcy Act of 1869 this temporary protection was withdrawn. In 1763, in the teeth of a decision of the Court of Common Pleas, both Houses resolved, in the case of Wilkes, that ' privilege of Parliament does not extend to the case of writing and publishing seditious libels ' ; and this seems to have carried with it the principle ' that privilege is not claimable for any indictable offence.' Finally, the privilege has been held not to extend to a member committed for con- tempt of court. The point was for some time doubtful, but was decided in the negative by a Committee of Privileges appointed to consider the case of Mr Long Wellesley in 1831, and their opinion has been confirmed in a number of subsequent cases'"'. "Anson, ^ i. 149. 264 ENGLISH CONSTITUTIONAL HISTORY Means of enforcing the privi- lege. 1453- ' .9. C. H. §451- Pike, 248- 250. '■^ Prothero. 127. 1604. 1625. Freedom of speech. Its two forms. The assertion of a privilege was of little use unless it was backed up by adequate means of protection and enforcement. Such means were of various kinds. At first, in the case of members actually under sentence, in order to avoid undue injury to the plaintiff, it was usual to pass special statutes authorizing the Chancellor to issue writs for 'their release : while, if a member was merely awaiting his trial in custody, a writ of privilege issued from the Chancery was deemed sufficient. In the exceptional case of Thomas Thorpe, the Commons even called in the assistance of the House of Lords. But in 1543, in the case of George Ferrer^ the Commons asserted their own authority, refused a writ of privilege offered them by the Chancellor, and through their Serjeant successfully demanded the prisoner's release. They seem still to have had occasional resort to Chancery ; but before the end of Elizabeth's reign occur several cases by which the Commons must have considered that they had finally asserted for themselves not only the privilege of freedom from arrest but the means for enforcing"^it.- Nor did they stop here : for, in order to safeguard it, they began the custom of appointing a standing committee of privileges at the opening of each session. But these precautions proved insufficient, and the privilege itself was only finally secured by an Act of Parlia- ment passed in 1604 in consequence of the dispute over the arrest of Sir Thomas Shirley. Hitherto the Commons had enforced the privilege by a writ issued in accordance with the Speaker's warrant. But the Act of 1604 together with a sub- sequent declaration of the Commons, 'that the House hath power when they see cause to send the serjeant immediately to deliver a prisoner,' made a writ of privilege unnecessary ; and it has become enough either to procure a decree of release from a judge of the court in which the member was sentenced, or for the House merely to issue its warrant or order for the same purpose. Freedom of speech is the keystone of the arch of parliamentary privilege, the one without which all other privileges would be valueless. It is. in fact a natural and necessary adjunct of any popular assembly. It was claimed by the Speaker only from the reign of Henry VIII onwards ; but it had already been acknowledged by the Crown, and was subsequently confirmed THE HOUSE OE COMMONS IN ACTION 265 alike by derisions of the law courts and Acts of the legislature. More than one (Question was involved in the claim. In its barest form, freedom of speech denoted the right of (i) ex- emption from pumshfne?tt for words uttered in debate. The need of the privilege was shown from the conduct of Edward I towards Henry Keighley, the spokesman of the Commons in the Parliament of Lincoln ; of John of Gaunt towards 1301. Peter de la Mare, the ' prolocutor ' of the Good Parliament ; 1376. and of the Yorkist party to the Lancastrian Thomas Thorpe, the Speaker in 1453.^ Owing to political reasons, the effort ' .V. C. H. of the Commons in the last case completely failed; but§45i- already, in the case of Haxey, they had vindicated their 1397. right ; for Henry IV, with the advice and assent of the Lords Spiritual and Temporal, entirely reversed the judgment passed at the instigation of his predecessor for the prisoner's reflec- tions in Parliament on the royal household. The principle received further confirmation in the cases of Tkojfias Young (1451)- and Richard Strode (1512),^ the latter of which was 2 ^, C_ fj^ followed by an Acf* condemning as utterly void, both in the §451- case of Strode and of all members of the present and future . ^"^o"- Parliaments legal proceedings ' for any bill, speaking, reason- -14 Hen. ing, or declaring of any matter or matters concerning the "^'HI. c. S. Parliament, to be communed or treated of.' But this statute afforded no protection against the interference of the Crown, and while the Tudor sovereigns seem to have done everything to encourage and to assist the acquisition of many other privileges by the House of Commons, the privilege of freedom of speech was just the one which they ' could not afford to recognize.' '' » Prothero, The claim by the Speaker appears first in 1541 ; but with the '"^•^'• growth of the power of the Commons there arose an important question — political rather than constitutional, but involving some important cases — concerning (2) the class of subjects which it was alloivable for Far/iafnent to discuss. This will be dealt with in the next chapter. Here it is necessary to note that while, on the one side, Elizabeth prohibited the Commons in 157 1 from meddling with any matters of state except such as were propounded to them,*^ and followed this up in the Par- ^ Ibid. 119. liament of 1593 by telling the Speaker, when he petitioned for the usual i)rivileges, that liberty of speech meant merely the 266 ENGLISH CONSTITUTIONAL HISTORY ^ Prothcro, right of saying yes or no to questipns laid before the House ; ^ ^"^" on the other side, in the Parhament of 1587 Wentworth, in in- dignation at these attempts to gag the House, asked ' whether this Council was not a place for any member of the same, freely and without control, by bill or speech, to utter any of - Ihid. the griefs of the Commonwealth ? ' - The attempt of the Crown \~}yj\ to enforce its views led to the cases of Strickland'^ (i57^)» who introduced a bill for reforms in the Book of Common Prayer, and was forbidden to attend Parliament, until the strongly expressed feeling of the Commons caused Elizabeth to with- draw the prohibition ; of Cope (1587), committed to the Tower for introducing ecclesiastical reforms, and of Peter Wentivorth, who was imprisoned no less than three times (1576, 1587, 1593) for persisting in the discussion of subjects unacceptable to the Queen. Under the Stuarts both sides began to formulate their claims. Thus, at the end of the first session of the Parliament of 1621 James imprisoned Sir Edwin Sandys, a previous offender. To the remonstrances of the Commons James, while declaring that Sandys was not imprisoned for any misdemeanour in Parliament, took occasion to say that he thought himself ' very free and able to punish any man's misdemeanours in Parliament as well during their sitting as ^ Ibid. i\o. after;' ■* and that he did not intend to let the power lie idle. The Commons answered in a Petition claiming, as they had Ilnd. 2S8. claimed at the very beginning of the reign,''' freedom of speech as their ancient and undoubted right and an in- heritance received from their ancestors, without which they could not freely debate nor clearly discern of things in Ibid. question before them, nor truly inform the king.*^ To James' rejoinder that these privileges were derived from the grace and permission of his ancestors and himself, since most of them had grown from precedents which showed rather "^ Ibid. T,\T,. a toleration than inheritance,'' the Commons answered with a famous Protestation " in which they shortly declared that the liberties, franchises and privileges of Parliament were the un- doubted birthright and inheritance of the subjects of England ; that the arduous aud urgent affairs concerning the king, state and defence of the realm and other such matters were proper subjects and matter of counsel and debate in Parliament, and that in the handling and proceeding of those businesses every !ii-:,i2. » /bid. 313-314 THE HOUSE OF COMMONS IN ACTION 267 member of the Houses of ^Parliament had and of right ought to have freedom of speech to the fullest possible extent without any fear of impeachment, imprisonment, or molestation except from the House itself.^ James dissolved Parliament, tore the ' Gardiner, protestation from the journals of the House of Commons, and ^^- 261-262. meted out various punishments to the chief offenders. The 151^.714''' last instance of the direct violation of this right was in the case of Si>- John Eliot and eight others who were imprisoned by the Privy Council at the end of Charles' third Parliament in 1629. 1629. The details of the case are full of interest, but are too long for reproduction here. Suffice it to say that the prisoners denied the jurisdiction of the Star Chamber in matters which had arisen in Parliament, and Charles, finding he could not sustain the position that the alleged offences had taken place during the adjournment, allowed the case to be taken before the Court of King's Bench. The prisoners still resisted the juris- diction of any court in any, except capital, offences committed in Parliament, and refused to plead. But the judges of the King's Bench declared that all twelve judges had agreed that offences committed in Parliament could, after the dissolution, be punished in another Court. They further maintained their own jurisdiction on the ground that the issue did not lie between the Crown and Parliament as a whole, but between the Crown and some private persons ; and that a member of Parliament, by committing sedition, made himself incapable of pleading privilege. Judgement was of course given against the prisoners.'-' This judgement was subsequently entirely con- •^- Gardiner, demned — in July 1641 by a resolution of the Long Parliament, vii. 90-96, in 1667 by a resolution of the Long Parliament of the Restora- '° '"^' tion, in 1668 in a judgement on a writ of error of the House of Lords ; while, finally, the Bill of Rights removed all doubt about the matter by affirming ' that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parlia- ment.'3 a s. C. 525, It was perhaps natural that privileges of Parliament, like §9- most other rights, should be first vindicated and then extended. Extension until they threatened to lose all basis in reason. Tiie Revolu- ° ^ -f ^ privilege. tion of 1688 assured to the Commons liberty of speech as against the arbitrary interference of the Crown. But it was 268 ENGLISH CONSTITUTIONAL HISTORY (I) Exclu- sion of strangers from debate. ^ Anson, i. 156 note, - For earliest case, vide Prothero, 133- 1770. ■'' Erskine May, ii. 27-33- ' Ibid. 55- ■'' Anson, i. 156. the victory of an oligarchy which hastened to share its spoils by the exclusion of all outside influences from admission to the House. These influences could come through two channels — the presence of strangers at the sittings of the House, and the publication of the debates in the House. The Commons of the eighteenth century went about to protect themselves from both these dangers. The custom of excluding strangers from the debates was probably at first dictated by convenience, for as late as 1771 a stranger was counted in a division.^ It was no doubt maintained to exclude royal spies, and was thus a valuable adjunct to the larger privilege of freedom of speech. - After the Revolution the dominant party in Parliament found it a useful weapon for preventing the words of a member of the opposition from being carried beyond the walls of the House. In the middle of tbe eighteenth century it was fashionable to attend the debates of the House ; but any member could draw attention to the presence of strangers, and the Speaker was then forced to order their expulsion. Matters reached a crisis in the corrupt Parliament which met in 1768. In 1770, on a motion relating to preparations for a war with Spain, the Lords (who in this respect were no better than the Commons), despite the protests of Lord Chatham and others, cleared their House of strangers, thus excluding among others several members of the Commons who were waiting at the bar to bring up a bill. These returned to their own House, and, in retaliation, obtained the exclusion ■of all strangers, including peers. The only peers thus treated were Chatham and his associates, who had withdrawn in disgust from the Lords and sought a refuge below the bar of the House of Commons.^ Both Houses continued for some years to en- force this exclusion, which ended, in the case of the Commons, in a conflict with the press. Strangers were, however, gradually readmitted, though it was only in 1845 that the standing orders of the House of Commons recognized their presence."* The revival of the practice of exclusion led to a discussion of the process by which it was enforced; and in 1875 it was resolved that the notice of the presence of strangers in the House should under ordinary Circumstances be followed by a vote of the House, without debate or amendment, on the question of exclusion."^ The right of individual members in the matter THE HOUSE OF COMMONS IN ACTION 269 has been thus curtailed ; and the position of reporters, in whose behalf the question was raised, is left to the results of the contest over the ptiblication of debates. Since such publication on a large scale could only be (2) Restric- achieved through the press, the prohibition to print the debates ^'°,"f. °". r , TT r 1 1 • r • , , ,- publication of the House for the general information can only date from, of debates. a time when the press had begun to be a recognised power. But even then Parliament was willing to waive its rights in the matter for the purpose of gaining popular support. Thus, in 1 64 1 the Long Parliament, while for the first time prohibiting, without leave of the House, the publication in print of speeches made in the House, itself undertook such publication under the title of * Diurnal Occurrences in Parliament.' Acceptable speeches of individuals were also printed by its order; but the private publication of his speeches by an opponent hke Sir Edward Bering was punished with the utmost severity. Again, in 1680 the Commons directed the printing of its votes and pro- ceedings under the supervision of the Speaker in order to pre- vent the inaccurate reports circulated in pamphlets and in the private letters of members to their constituents. But the pro- hibition still continued, and with the increased jealousy of outside interference which followed the Revolution, it was maintained by frequent resolutions and the punishment of offenders. But the continued and ill-concealed violation of the privilege led to a resolution of the House in 1738 condemning as ' a high indignity and a notorious breach of privilege ' the publication of any account of its proceedings. This engendered extra caution in the reporters, and the speeches were assigned to fictitious persons in an imaginary assembly. In 1771, how- ever, under the instigation of Wilkes, all precautions were thrown to the winds, and intentionally inaccurate speeches were reported in the daily newspapers under the nicknames of the members. The result was a series of attacks by the Commons on the printers and publishers, which led to the cases of Whehle, TliompsoH and Miller. The two former were collusively appre- hended in the City of London and discharged by two Aldermen, one of whom was Wilkes. Miller gave the messenger of the House into custody for assault and was uph^d by the Lord Mayor, who committed the prisoner for attempting to arrest any one in the City without a warrant backed by a City magistrate. 270 ENGLISH CONSTITUTIONAL HISTORY The House committed to the Tower the Lord Mayor and the other Alderman, who were members. Wilkes refused to attend, and finally was left alone. But, despite the order of the House to the contrary, the messenger was indicted, and only escaped through the interference of the Attorney.-General ; while the House made no further attempt to assert its privilege. Until 1834, however, reporters were surrounded by difficulties. They were not allowed to take notes, and were liable to be crowded out through want of space or to be excluded with other strangers. But after the destruction by fire of the old Houses of Parliament, separate galleries were provided for them. Since then, the House of Commons has facilitated the publication of its proceedings for the information of the electors, and has been followed at an interval by the Lords. Thus, in 1836 the former began the custom of recording and publishing daily the votes of every member — a plan which the Lords adopted in 1857. Again, since 1839 the Commons, and since 1852 the Lords, have published the names of all members sitting upon select committees together with the evidence taken M^v"^/!'^ before them; while in 1835 the Commons directed that all 34-60. their papers should be freely and cheaply sold.^ Limits to Although the House has asserted its privilege by the occa- privilege of sional commitment of those who have libelled its members in speech ^^ individual or a corporate capacity, yet the information supplied by the press is so minute and its comments are so unrestrained, that it is not easy to appreciate the /imifs to the violation of this privilege. For while, on the one side, the reports of parliamentary proceedings are both made and pub- lished on sufferance ; on the other side, such publications are equally with any others aitienable to the ordinary law of libel. This is true of the publication either of a full debate by a newspaper, of an individual speech by the speaker, or of parliamentary papers printed for general distribution by order of the House. With regard to fiewspapers, however, it was decided by the Court of Queen's Bench in the case of Wason 186S. V. JValter that an honest and faithful report of a debate in Parliament exempts the proprietor of the paper ' from legal responsibility, though the character of individuals may inci- dentally be injuriously affected.' But since the parliamentary privilege itself forbids the report of a debate, the publication Eiskine THE HOUSE OF COMMONS IN ACTION 2/1 of his speech hv an itidividiial member is in no way covered by it ; and the printed speech is treated by the law courts as un- connected with any proceedings in ParHament. Thus, while in the case of Lake v. King it was held that a member was not liable for otherwise libellous statements in papers circu- lated among the members themselves ; at the same time, the case of Crecvey decided that the corrected report of 1813. the speech of a particular member was not privileged, which contained ' reflections injurious to the character of an in- dividual.' Finally, the House of Commons found itself, with regard \o papers published b>y its order, in the position of the individual member.' In the case of Stockdale v. diansard ^ VA?,Vme: (1836) the Lord Chief Justice and, on reservation, the Court of May, ii. King's Bench, successively decided that an order of the ^' " ^' House of Commons was not sufficient justification ' for any bookseller who published a parliamentary report containing a libel against any man.' The Commons endeavoured to support their printer, Hansard, by an assertion of their privi- lege ; but a lengthy quarrel was only ended by an Act which 3 <-^ 4 ^'ict. provided that all legal proceedings in such cases should be ^' ^" stayed on the production of a certificate that the paper in question was printed by order of either House of Parlia- ■_> ;^„j,(,ri ment.- i. 160. § 38. The second set of privileges to be noticed — those not (0 Hegu- claimed by the Speaker — have for their object the assertion of '^^'"S^"'^ ..... f. COlLStltU- the dignity and independence of the House of Commons. For tion of the this purpose it was necessary, in the first place, that the House House by should secure the right to provide for its oivn constitution. This right, when translated into act, has included the power of issuing writs for filling vacancies among the members; the immediate application of legal disqualifications ; and the trial of disputed elections. Writs for the election of members of the Commons were originally issued from the Chancery and, when filled uj), were returned for verification in Parliament itself, while com- plaints against any particular return were heard by the king with the aid of his Council or even of Parliament. The Act of 1406 directed that the return to the writ should be made on an " ^^'-'"- ^^• indenture signed and sealed by all who took parrt in the election. ''" Henceforth the returns were made into Chancery ; and although „ j, . the Act of 1410 gave the inquiry into undue returns to thee. i. 27' ENGLISH CONSTITUTIONAL HISTORY (a) declara- tion of incapacity to sit. 1 Hallam, i. 275. (b) expul- sion for unworthy conduct. - Prothero, 131- ■• Mallam, i. 274. ■• Erskinc May, ii. 2-26. justices of assize, the king still seems to have reserved to him- self, with the help of the Lords or the judges, the consideration of the validity of the return. The growing power of the Commons under the Tudors caused them to claim the exercise of this power for their own House. The first point which they made good was the declaration of incapacity to be a member of the House. This was asserted in the case of Alexander No7vell (1553) who, being a member of Convocation, was disqualified for a seat among the Commons.' It has been exercised, without any reference to a Court of Law, in the case of persons attainted of treason or felony, who by the Common law are incapable of being elected to Parliament. Such was the action of the House in the cases of Smith 0'Brie?i (1849), O' Donovan Rossa (iZ'jo), John Mitchel {i2>'] ^), and Michael Bavitt (1882). Side by side with this right may be placed the expulsio7i for conduct which the Commons have considered to be unworthy of a member of their House. Of this the earliest instances viexe Arthur Hall {iKi?,i)^^ for publishing a book 'derogatory to the authority of Parliament'; and Dr. Parry (1584),^ for branding a bill against the Jesuits with the epithet ' bloody.' Among the numerous cases which have occurred in the course of the last three centuries, the most celebrated are those of Sir John Trevor^ the Speaker (1694), for taking bribes; Walpole (i"]!!), for peculation in ofifice ; and /ohn Wilkes (1764), for being the author of a seditious libel. In the last case Wilkes was re-elected no less than three times, and the House, having begun by declaring his election void and so creating a new disability of their own devising, ended by pronouncing that the votes given to him were thrown away, and that his opponent, who was in a hopeless minority, was duly elected (1770). Wilkes was elected to the next Parlia- ment (1774), took his seat without further opposition, and ultimately in 1782 obtained from the House a reversal .of its former acts against him.* The result of this and many other cases is that, whilst the House is perfectly at liberty to expel a person whom it accounts unworthy to be a member, such expulsion not only lasts merely for the current Parliament, but it merely vacates the seat and does not create a disqualification to sit again, which is beyond the province of the House of Commons. The practical difficulty is that the constituency THE HOUSE OF COMMONS IN ACTION 273 may continue to re-elect the expelled member to the vacant seat, and so for a period may disfranchise itself.^ 1 Anson, The conduct of the House of Commons in the case of i> 167. Wilkes was made possible by its possession of the right of [c) trying frying contested electio?is. This right was first distinctly asserted disputed in the case of the county of Norfolk. Owing to some infor- ""^'^"^"s- mality in the first election, a second writ was issued .by the ^ Chancellor. Whereupon the Commons, despite Elizabeth's assertion that the matter belonged to the Chancellor, held an inquiry and declared the first election good.^ But it was only 2 Prothero, after the stubborn resistance of the Commons to James" I in i30- the matter of the Buckinghamshire election, known as the case of Goodwin and Fortescue (1604),-^ that the Commons •' /<5/a^. definitely secured an acknowledgement of their right to take 325-331- cognizance of all disputed returns. This right received the sanction of the Court of Exchequer Chamber in the case of Barnardiston v. Soame (1674), of the House of Lords in 1689, and of the Courts of Common Law in the cases of Onsloiv (1680) and Frideaux v. Morris (1702) ; while it was taken for granted in a statute of 1696 which declared the illegality of 7 Will. III. a double return to a writ. But the temptation to extend the ^- 7^ right proved irresistible; and in the case of Ashhy v. IVkite, 1703. followed by that of the Aylesbury 7?ien, the Commons attempted 1704- to adjudicate upon a strictly legal point — the qualification of ^.tlallam an elector.^ Disputed elections were at first tried by select committees Methods of specially nominated, but these were superseded by a perma- [g^J"^ *^°"" nent Committee of Privileges and Elections, nominated by elections, the House and composed of Privy Councillors and eminent lawyers.^ This was gradually enlarged by the addition of all '* Prothero, Privy Councillors and a large number of lawyers; until after "7. 1672 it became an open committee of the whole House, in which all members were allowed to have a vote. In special cases a disputed election was heard at the bar of the House itself; and in the time of Speaker Onslow the confidence 1 727-1761. which he inspired in suitors caused this to become the usual custom. But in the midst of this fluctuating and incom- petent tribunal all sense of justice was lost. Each disputed election became a trial of party strength, and members voted for the candidate who professed the same political opinions 274 ENGLISH CONSTITUTIONAL HISTORY ^ Anson, i. 165. -Ibid. 160. 31 & 32 Vict. c. 125, amended by 42 & 43 Vict, c. 75. (2) Exclu- sive cogni- zance of everything within tlic House. 3 Hallam, i. 271-274. •• Prothero, xciii. irrespective of the \Yishes of the constituents or the merits of the case. The best-known instance is that of the Chippen- ham election petition, in which the defeat of his candidate was considered by Walpole as equivalent to a vote of want of confidence. In 1770 the Gre7nnlle ^f/,^ named from its author, attempted a remedy for this scandal. The decision of disputed returns was to lie with a committee. From forty- nine members chosen by ballot the petitioner and the sitting member were to strike out names alternately until the number was reduced to thirteen. To this number each party should add one nominee, and this committee of fifteen was empowered to take evidence on oath, and to decide the matter without any appeal back to the House. This Act, at first temporary, became permanent in 1774 ; but it had little effect in curing the old evils. The preliminary ballot became a party matter, and each side struck out its political opponents, while both con- curred in omitting all the ablest men. The committee was thus both 'partial and incompetent.' Sir Robert PeePs Actm 1839 reduced its number to six, and a subsequent Act to five, nominated in each case by an impartial body — the general committee of elections. But no satisfactory solution was reached until 1868 when, by an entire change of principle, the Act of Henry IV (1410) was revived, and by the Elections Act'^ the trial of disputed elections was transferred to the judges of the High Court of Justice, acting as servants and nominees of the House of Commons. To them in the first instance the petition of the aggrieved party is presented. The trial is heard in the neighbourhood whose representation is in question, the decision is reported to the Speaker, and the House takes action thereupon. The second of the privileges acquired by the House, but nowhere expressed in words, has been described as the right to the exclusive cognizance of matters arising within the House. This involves, in the first place, the power of the House to punish its own members, which has been asserted in the cases oi John Storie (i548),'^ for violent language; Copley (1558), for speaking disrespectfully of Queen Mary ; Peter Wenttvorth (1576),'* for discussing matters which Elizabeth had forbidden; Arthur Hall and Dr. Parry, already mentioned ; together with all the numerous cases of expulsion for various offences THE HOUSE OF COMMONS IN ACTION 275 committed inside the House. The extent of this power may Limits be judged from the fact that the law courts have frequently "^^^f^ declared that they will take cognizance of nothing short of^"^'^^*^' a criminal offence committed within the House or by its order. Thus, in the case of Eliot already mentioned, who was con- victed by the Court of King's Bench, among other things, of an assault on the Speaker, the House of Lords, in reversing the decision in 1668, chose the ground that one of the offences, seditious speeches, was not within the province of the Court of King's Bench. They avoided an expression of opinion on the act which did fall within the competence of a Court of Common Law, and silence would seem to imply acquiescence in such a view.^ Within recent years the attitude of the law 1 Anson, courts in the matter has been most clearly laid down in the '• '7i- case oi Bradlaiigh v. Gosset, in the course of which Mr Justice 1884. Stephen declared that he knew of 'no authority for the pro- position that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice.' At the same time, the same judge asserted that the House had the exclusive power of interpreting a particular statute (the Parliamentary Oaths Act, 29 & 30 Vict. c. 19) 'so far as the regulation of its own proceedings within its own walls is concerned ; and that, even if that interpretation should be erroneous, this court has no power to interfere with it directly or indirectly.' A distinction was thus clearly made between acts done in the House itself, and those 'rights to be exercised out of and independently - /(5?(/. 170 of the House.' -^ --^ '81. A clear understanding of this principle would have saved more than one conflict between the House of Commons and Conflicts the law courts. For, not content with the exclusive cognizance |;?5^^'^^" '^'^ ... , . 1 -^ 1 Commons of all that went on withm their walls,- the Commons have and the law been inclined to extend their privileges and to claim /or them- courts, over selves the exclusive power of determining their extent. The reason is obvious. A confirmation in the law courts of a privilege asserted by the Commons may be reversed on an appeal to the House of Lords ; while its rejection by the court leaves the Commons with the sole alternative of a similar appeal. In either case one House becomes the judge of privileges claimed by the other. The Commons have pre- 276 ENGLISH CONSTITUTIONAL HISTORY (i) extent of Commons' privileges. ^ Patteson, [., in case of Slock- dale X. Hansard. 1703. - Anson , i. 176, 180. 1839. * Ibid. 177, 180. 1842. •* Ibid. 182. ferred to carry matters with a high hand. They have drawn up resolutions of their right to the privileges in question : they have prohibited suitors, and have committed the judges and executive officers to prison for contempt. But the judges have maintained an even course throughout. While admitting the necessity of receiving resolutions of the Commons with all due respect, they regarded it as their main business to interpret the law. No resolution of one branch of the legislature can lay claim to the binding force of a statute. Thus no act, in itself illegal, can be legalized by the authority of the House of Commons, for 'it is necessary, in answer to an action for the commission of such illegal act, to show, not only the authority under which it was done, but the power and right of the House of Commons to give such authority.' ^ These were the principles maintained in the two celebrated cases of Ashby V. White and Stockdale v. Jfa/isard. In both cases the Com- mons tried to assert by a resolution what they conceived to be a violated privilege, and to force the law courts to pay heed to it. In the first case, the real question was mixed up with a quarrel over the jurisdiction in error of the House of Lords, and the matter was only ended by the prorogation of Parliament.''^ In the second case, the contest between the Commons and the law courts continued until an Act was passed to protect parliamentary papers from the ordinary law of libel. ^ The contemporary case of Harvard v. Gosset shows that the law courts were influenced by no capricious motive in their quarrel with the House ; for, a judgement against the serjeant-at-arms for executing the Speaker's warrant with undue severity, was unanimously reversed when the Commons re- solved to test its legality by an appeal to the Court of Exchequer Chamber. A similar appeal in the former case would probably have resulted equally in a verdict for the House of Commons. As it was, the Courts maintained their point and clearly established the principle thatr they will not be deterred from upholding private rights by the fact that questions of parliamentary privilege are involved in their main- tenance ; and that, except as regards the internal regulation of its proceedings by the House, Courts of Law will not hesitate to inquire into alleged privilege, as they would into local custom, and determine its extent and application,'^ THE MOtJSEl OF COMMONS IN ACTION 277 Nor has the question of the extent of its privileges been the (3) Punish- only cause of contention between the House of Commons "l^"*^ f""^ and the law courts. The natural result of the right of the privileges. House to exclusive cognizance of matters arising within it, is Xhe. po^ver of irtflicting punishment for breach of privilege. This may be visited either upon a member or upon some one outside the House. Until 1666 it often took the form of a fine, but this has fallen into disuse. The modern forms are — expulsion in the case of a member ; and admonition and commitment to the custody of the serjeant-at-arms or to prison, which are applicable to all offenders. It is the limits of this power of (ii) limits of commitment which have been called in question by the law power of courts. The power itself was originally based on the con- ^-^^^^ tention, vehemently upheld in the case of Goodwin and Fortescue, that the House of Commons was a Court of Record. But Lord Mansfield denied that the Journals of the House were matter of record ; and since the Commons gave up the right to determine disputed elections, the claim has lost all meaning. The law courts have themselves maintained this power of the House to punish for breach of privilege in the cases of Alexander Murray (i75i)and Burdett v. Abbott ( 1 8 1 o), on the ground of its necessity for maintaining the dignity of the House. But when the Superior Courts of Law have been called on to examine into a return made to a writ of Habeas Corpus which has been sued out by a prisoner committed by order of the House, they have applied to the matter those principles which guide them in their conduct towards each other. Thus, in both the cases just noted, it was held by the judges that if the commitment w'as alleged tu be for contempt without specifying the precise act, the law courts would not inquire further into the matter, for they had no means of judging of the question. In the earlier case of Pat}\ the majority of 1705. the judges practically went still further, and refused even to take cognizance of any act which the House of Commons chose to describe as a contempt ; but the two later decisions have made it clear that a specification of the act for which a prisoner had been committed by the Commons, would justify the law courts, in their opinion, in inquiring into its truth and justice.^ Otherwise the individual would have no ' Anson, i. protection against an arbitrary vote of the House. 182-3. 278 ENGLISH CONSTITUTIONAL HISTORY Relations of the Com- mons and the Lords. Their original attitude. 1 S. C. H. §§417,419- 2 Ibid. §293- ' Ibid. §441- ■» Ibid. §438. § 39. The relations of the House of Commons to the Crown have been largely defined by the legal provision for the meeting of Parliament in the Triennial Act, and by the gradual assertion of parliamentary privilege. Equally important is it, in con- sidering the growth of the Commons, to consider their attitude towards the remaining branch of the legislature — the House of Lords. It has been pointed out already that the original difference in the position of the two Estates came from the fact that the Lords had a position in the organised body of the Commune Concilium with fairly defined rights and powers. The exact force of this difference may be illustrated from three sides. In the first place, the wording of the writs of sujhj/iojis to Parliament would show the part which the Crown intended that each Estate should play in the new assembly. Thus, while the Lords were generally summoned by the formula 'tractaturi vestrumque consilium impensuri,' the presence of the repre- sentatives of the Commons was desired 'ad faciendum et consentiendum.' ^ In other words, the Commons were not called together with the other Estates for deliberation and advice, but merely in order that they might strengthen the resolutions of the king and the Lords with their presence and their supposed assent. Again, \.\\efo?-m of the enactme7tt of laivs originally stated that they were made with the ' counsel and consent of the Witan,' and the same form continued to the end of the thirteenth century with the substitution of the word ' Barons ' for Witan. The early parliamentary form expressed the equal ' consent of the prelates, earls, barons and commonalty of the realm.' But this theoretical equality of the Commons meant nothing, while if displeased the other Estates ; and in the first year of Edward III the share of the Commons was more modestly and truthfully expressed as 'petition.'-' Under Richard II the equality of the Commons in legislation is again expressed ; but under Henry IV the formula again mentions the 'request' or 'prayer of the Commons.'^ Lastly, in the grant of taxation^ each Estate at first voted its proportion separately. But soon after the Estates had definitely separated off into two Houses, the method of grant begins to assume a common form ; and the greater importance of the Commons in this parti- cular is acknowledged in the formula that all grants are made 'by the Commons with the advice and assent of the Lords.''* THE HOUSE OF COMMONS IN ACTION 279 But as the power ot" the Commons grew, the actual changes Change in the relations of the two Houses were far wider than any- ^^ ^^^" thing expressed by the traditional formulae. Until 1872 the ^"^"^e writs of summons to Parliament remained substantially the same as in the fourteenth century. The Lords were still called 'to treat and give their council,' the Commons 'to do and consent to ' what is ordained by the Common Council. Now, however, while the summonses to the peers remain the same as always, the Ballot Act has provided for the Commons 1S72. a shortened form which does not commit itself to the part which the elected members are supposed to play in the assembly. Meanwhile, all the three chief powers which had descended to the Lords from the Commune Concilium were in one way and another challenged by the Commons. An examination of the disputes in each case will show clearly the change in relations which, in the six centuries of their existence, the two Houses have undergone. The Commune Concilium was organized by Magna Carta solely for purposes of taxation. But it was for this very purpose that Edward I Commons included the representatives of the Commons in the National ^axadon^^ Assembly ; and although from an early period grants of money were said to be made by the latter, it was only very gradually that the Lords surrendered all claim to a voice in the regula- tion of supplies. The first step in the ultimate monopoly of the Commons in all matters relating to taxation was taken in 1407- The king consulted with the Lords as to the The Lords necessary amount of the supplies to be raised, and then deprived of summoned the Commons to communicate to them the decision Jy^ of the Lords. But when the Commons in alarm complained of this derogation to their liberties, Henry, who had acted in mere carelessness, immediately gave way and, in an Ordin- ance called the ' Lidemnity of the Lords and Commons,' while asserting the right of each House to deliberate by itself on the state of the realm, he promised that 'neither House should make any report to the king on a grant made by the Commons and assented to by the Lords, or on any negotiations concerning the grant until both Houses were agreed, and that 1 s. C. H. then the report should be made in manner and form as%Z^% hath hitherto been accustomed, that is, by the Speaker of the '~^° ^^j^^l Commons.'^ But although the right of initiation was gone. Hi. 611. 28o ENGLISH CONSTITUTIONAL HISTORY (b) amend- ment, 1671. 1678. ^ Anson, i. 266-7, quoting Commons Joumals, ix. 235, 509- (c) re- jection. the Lords still claimed the power of interfering with money bills by amendment or rejection. The right of amendment was denied by the Commons in two resolutions in the reign of Charles II. In the first they asserted 'that in all aids given to the king by the Commons, the rate or tax ought not to be altered ' : and they followed this up by an elaborate summary of their whole claim 'that all aids and supplies, and aids to his Majesty in Parliament, are the so/e gift of the Commons ; and all bills for the granting of any such aids and supplies ought to begin with the Commons : and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such bills the ends, purposes, considera- tions, conditions, limitations and qualifications of such grants : which ought not to be changed or altered by the House of Lords. ^ ' But the Lords still retained the right of altogether rejecting a money bill. They were, however, so chary in the use of this power that the Commons took advantage of their for- bearance, and by the process of ' tacking ' on to a money bill another bill whose rejection by the Lords was a foregone conclusion, they left to the Lords the unwelcome alternative of passing the obnoxious bill or of rejecting the necessary supplies. In 1702 the Lords not unnaturally stigmatized this practice as ' unparliamentary and tending to the destruction of the con- stitution of this government.' The right of rejection was suffered to be in abeyance until i860, when it was exercised upon a bill for the repeal of the paper duties which formed part of the financial arrangements assented to by the Commons for the ensuing year. This not only upset the calculations of the ministers, but was regarded by the Commons as an in- vasion of their privileges ; and, while unable to alter matters for that session, they drew up for future guidance a series of resolutions which afifirmed the sole right of the Commons to grant aids and supplies to the Crown ; the jealousy with which the Commons regarded even the sparing use of the power of rejecting money bills exercised by the Lords, since it affects the right of the Commons to grant the supplies, and to provide the ways and means for the service of the year ; and finally, the. sole power of the Commons to impose and remit taxes and to frame bills of supply that their right as to the matter, manner, measure, or time, may be maintained inviolate. These THE HOUSE OK COMMONS IN ACTION 28 1 resolutions are careful not to deny the abstract right of the Lords to reject money bills; but they are intended 'to guard for the future against an undue exercise of that power by the Lords, and to secure to the Commons their rightful control over Taxation and Supply.' ' This, however, is to be done by ' Anson, the Commons framing their money bills in such a way as to '• 267. render impossible the exercise of the right of rejection. As a practical outcome of these resolutions, in the next year the 1861. Commons included all the proposed financial measures in one bill ; and, as amendment was out of the question, the Lords were constrained to accept the whole proposal, since they were not prepared to adopt the only alternative of rejection. The power of the Lords in legislation has remained a much greater reality than their power in taxation. It was under Henry VI that the Commons asserted their equality in this Commons' respect with the other Estates of the realm, by substituting j.^/" the form of bill for that of petition which they had hitherto tion. employed. Thus from 1445 laws begin to be enacted 'by authority of Parliament ' ; and from the beginning of Henry VII's reign no further mention is made of petition or re- quest ; - while the general formula which exists to the present "- s. C. H. day, expresses ' the assent of the Lords Spiritual and Tem- §§ 439- poral, the Commons in Parliament assembled, and the autho- ^"^ rity of the same.' But, except in the matter of money bills, a strict equality has been maintained between the two Houses in legislation. The Lords, equally with the Commons, possess the right of initiative and the power of rejecting or amending a bill which is sent up to them from the Lower House. There are only two methods of overcoming the dead-lock Methods which otherwise ensues on the refusal of one House to accept °f °y^'" the amendments of the other. The first is a cotiference be- '^°™TJ,\r,^ tween appointed members (called Managers) of both Houses, of the This was a common custom, especially for the settlement of ^""^p^; the money grant, in the last quarter of the fourteenth cen- suasion. tury. It took the form of a selection of a number of the Lords, either by their own House or even by the Commons, to confer with the whole body of the Lower House. But the Lords were tenacious of their position and seemed inclined to resent the dictation of the Lower House. Thus, although in 282 ENGLISH CONSTITUTIONAL HISTORY ' 5. C. §§ 293, 436. H. '^ Anson, i. 258-260. (2) Coer- cion. 1711. * Bagehot, Eng. Const. 229. ■» Hearn, Govt, of England, 177- 1377 the Commons selected the committee of Lords with whom they would confer, in 1378 the Lords described this conference of a select number with the whole House of Commons as a novelty, and preferred the discussion by a committee on either side. Again, in 1381 they resented an application from the Commons to know the opinions of the prelates, barons and judges separately, since it w-as the practice of Parliament for the Commons to lay their advice before the Lords. Neither was the king particularly favourable to this procedure. In 1383 Richard II attempted to nominate the committee of Lords who should confer with the Conmions ; and in 1402 Henry IV allowed the conference as a great favour, but his own concession in the matter of taxation five years later (1407) practically conceded the point.^ Since then, conferences have been frequently held between select com- mittees of both Houses, and for a long time it was customary that the number of the Commons nominated should be double that of the Lords. Conferences were either fonnal, in w-hich case they limited themselves to the reading of reasons for its disagreement drawn up by the committee of the objecting House ; or free, when they took the form of a debate for the purpose of arriving at some compromise or agreement. But free conferences are almost entirely discredited. None were held between 1740 and 1836, and there has been no instance since the latter date: while in 1857 even formal conferences were superseded by resolutions of both Houses in favour of messages, unless a conference should be specially demanded by either side.- The second method of overcoming a disagreement between the two Houses is the coercion of the House of Lords. In theory this can be effected by a creation of peers. It was by this means that the Tory government of Harley and St. John succeeded in forcing the Treaty of Utrecht through the \\'hig House of Lords. It was a threat of resort to this means that among other things brought the Lords to reason on the occasion of the first Reform Bill. An eminent writer has characterized this power of creating peers as the ' safety valve ' of the constitution, ^ but although we need not go so far as to regard it with another distinguished author as ' not only unconstitutional but absolutely illegal,''* it seems more THE MOUSE OF COMMONS IN ACTION 283 consonant with modern feeling and common sense to hold ' that to introduce a number of persons into the House of Lords for the sole object of determining a vote on a particular occasion is a use of legal powers which nothing could justify but imminent risk, in the alternative, of public danger." | Anson, A more effectual and constitutional method of overcoming '• ^ i- the resistance of the House of Lords is by a dissolution of Parliament and an appeal to the constituencies to endorse the action of their representatives in the House of Commons. Such was the action taken in the case of the Reform Bill, but then not recognised by the Lords in its full significance. Since then, however, and largely in consequence of that bill, the relative power of the two Houses has undergone great change, and the opposition leaders in the House of Lords, in considering the bill for the disestablishment of the Irish Church, 1869. gave way on the express ground that, when the country has once decisively spoken, the Lords no less than the Commons should feel that they hold a mandate to carry out the wishes of the constituents. The only way in which the Lords can assure themselves of the clearness of that speech, is by holding out until an appeal has been made to the electorate. In this way they act as the guardians of the rights of a temporary or accidental minority. But not only have the Commons monopolized the right of Commons' granting taxes and forced the Lords to acknowledge the y^'^^''" . ° .° . . ° ference in necessity of accepting laws at their command : they have even judicial interfered with the exercise of that judicial power, a share in action of which they themselves were the first to repudiate. The [.^ned^for^ causes of such interference have been twofold. In the first by place, the Commons have been led by ^\\qq.x jealoiisy to resent (^) mter- • • • • Tc re n c G what appeared to them to be an mvasion of their privileges, ^j^j^ j^.j. Thus, in the case of Shirley v. Fagg, the question at issue leges ; touched the claim of the Lords to hear appeals from the '^75- Court of Chancery ; and the sole reason for the interposition of the Commons was the fact that the original decision of Chancery had been given in favour of a member of their House. Considering the motive of the Commons it is not a matter for regret that the Lords made good their claim. Again, in the case of Ashby v. White and the succeeding 1703-4- cases, the Commons considered that the Lords, in hearing an 284 ENGLISH CONSTITUTIONAL HISTORY 1668-9. (2) excess of juris- diction. 16S1. 1 640- 1. appeal in error from the decision of the Court of Queen's Bench on the question of Ashby's right to vote, had un- warrantably interfered with a privilege — that of deciding the qualifications of electors — which the Commons quite wrongly claimed for themselves. They even went so far as to commit the other electors, who followed Ashby's example, for breach of privilege, and refused to allow any reference by writ of error to the judgement of the Lords. But the Commons have not always been actuated by such unworthy motives in questioning the jurisdiction of the Lords. They were called upon to take part in the case of Skinfier v. the East India Company, partly perhaps because some members of the Company were also members of the Commons, but chiefly because they were petitioned by the Company and therefore felt themselves obliged to uphold the rights of individuals against an usurped jurisdiction. The quarrel was not fought out to a conclusion ; but the Lords gave way and practically admitted not only their own mistake, but the justice of the Commons' conduct in the matter. The Commons were equally successful in their con- tention arising out of the case of Fitzharris, whom they had impeached for a capital offence and whom, as being a commoner, the Lords refused to try. There were numerous precedents in favour of the Commons' contention, the latest being those of the judges and royal servants who had been impeached by the Long Parliament ; while all constitutional lawyers were agreed in regarding an impeachment as an exceptional mode of trial. In the matter of Fitzharris the Commons protested against the refusal of the Lords as a denial of justice and a violation of the constitution of Par- liament, declaring that it was ' their undoubted right to impeach any peer or commoner for treason, or any other crime or misdemeanour.' Fitzharris was tried at common law ; but the Lords acknowledged the untenability of their attitude by never again questioning the right of an impeached commoner to a trial in their court. CHAPTER VI THE EXECUTIVE AND LEGISLATURE IN CONFLICT § 40. The growth of the power of the legislature has been dealt with at some length. It is necessary, however, to traverse much of the same ground from the side of the executive. It has been seen that until the petitions of the Commons became the means by which legislation was initiated, it is merely Struggle of complimentary to talk of any assembly as the Legislature. Up ^]^^ execu- to the date indicated, then, constitutional history is chiefly [h^g^ d^ru"^*^ concerned with the struggles of the executive against tive ten- THOSE provincial AND DISRUPTIVE FORCES which are 50^^"^"^^°^ characteristic of early English history. The settlement of the English tribes took a century and a half to accomplish. For 450-600. the next two hundred years England was divided among 600-800. a number of small kingdoms : and the only semblance of unity came from the organization of the Church and the more or less acknowledged supremacy of one of the greater princes. How soon this would have led on to a more substantial union, it is impossible to determine; for the ( 1 ) provin- Danish invasions introduced a new element of disruption. "^^ feeling ; The real unity of England may be said to date from ^Ellfred's consolidation of Western Mercia with Wessex, which was followed by Eadward the Elder's conquest of all England south of the H umber together with his shadowy supremacy over Northumbria. But the difficulty of swift communication under the made even this restricted area too great to be governed from ^"Si"- one centre; and although in 954 Northumbria also was in- ' corporated within the I*'.nglish kingdom, it was only as an addition to those ealdormanries which Eadward the Elder's son and successor, /Ethelstan, had found himself compelled to establish. Thus the last century of Anglo-Saxon history is 285 286 ENGLISH CONSTITUTIONAL HISTORY a time of strong contrast. On the one side stood the king, already as strong, in what may be called his material strength, as the elimination of all royal rivals, the maintenance of an extensive thegnhood, and the spread of the practice of com- mendation could make him. But with the acquisition of a right to the title of King of the English his personal dignity became much exalted. Its limits may be measured by the promises made by the king to the people at his coronation, that he would do their will although he was their lord, and by the continued exercise of the Witan's power of deposition. For the present, the king shared with other lords the advantages to be derived from the imposition of oaths of fealty and the maintenance of a law of treason. But it was probably this Freeman, enhancement of the personal dignity of the Crown which Conq.'x. caused .-Ethelstan and his successors to assume the imperial 548 et seq. titles of Imperator and Basileus.^ A practical comment on such titles may be found in the commendation of the princes 924- of the Welsh, Danes and Scots to Eadward the Elder and the 945- bestowal of Cumbria and Galloway by Eadmund on Malcolm, the son of the Scotch king, and (more doubtfully) that of the Lothians by Eadgar on Kenneth II. Alongside of this personal assumption ran an increase of official position, which gradually transformed the king from representative of his people and the guardian of law to lord of their land and the source of all justice. On the other side stood the great ealdormen, who, whether the descendants of the old royal houses, or related to the West-Saxon royal family, or the nominees of the reigning king, equally represented the strong provincial feelings which had been fostered by the separate and mostly antagonistic existence of 400 years. Except under a very strong king they could manipulate the Witan ; while locally their action could and often did paralyze that of the Crown. Indeed, the division into ealdormanries was rather a change of name than of fact. Whatever was the outward form, the disruptive spirit charac- teristic of feudalism was abroad in England in a far stronger measure than it ever was after the Conqueror had done his work ; and in a much more real sense than ever after the Norman Conquest, the king realised the feudal position of 'primus inter pares.' The Anglo-Saxon kingdom had altogether succumbed to THE EXECUTIVE AND LEGISLATURE IN CONFLICT 287 that provincial feeling which had made her rulers powerless against Danes and Normans alike. William and his successors under the determined at all costs to remedy this 'centralization without '"^"^• concentration ' which had placed them where they were. Fortunately, two reasons made this possible as it had not been possible before. Firstly, the Normans, as a small band of strangers among a hostile population, were obliged for the sake of military discipline to submit to restraints which they would otherwise have refused. Thus, while the tenure of land was on the feudal condition of specified military service, William abolished the great provincial earldoms and enhanced the power of his own representative, the local sheriff. Secondly, the presence of a common foe caused the English people at length to draw together. The king perceiving, with the instinct of a statesman, that they were unable to organise themselves, did everything to win their confidence. Thus he went out of his way to maintain as much of the old constitution as he could understand or profitably use. He solemnly confirmed Eadward the Confessor's laws, and encouraged English institutions. The local courts of shire and hundred were a counterfoil to the feudal and manorial jurisdictions. The /iv-^ was, in theory at least, the nation in arms. The old oath of fealty, which was enforced on all landowners without distinction of tenure at the famous meeting of Salisbury in 1086, was a denial of the exclusive claims to their tenants' services made by the feudal lords.^ ^ Jenks, Meanwhile, a new power had arisen which was as inimical °^' ''^' ^^' to the aims of the Crown and the growth of nationality as that of the baronage itself. The Anglo-Saxon Church had on the (2) claims whole acknowledged only a somewhat shadowy supremacy ?i,^^'^, on the part of Rome. Consequently, despite the efforts of Dunstan's party of reform and the introduction of foreign bishops by Eadward the Confessor, England remained ecclesiastically l)rovincial. The clergy sat in the secular courts and connected themselves by marriage with the local gentry. William's work was to bring the English Church into harmony with the eccle- siastical discipline and thought of Western Europe. The William I's prevailing sentiment of the Church demanded such a separation '-"ccl'^smsu- between things ecclesiastical and things temporal as was implied ^^ ^° "^^' in the celibacy of the clergy, which, to avoid a great outburst 288 ENGLISH CONSTITUTIONAL HISTORY of feeling, Lanfranc only gradually introduced ; and in the establishment of distinct ecclesiastical courts, which fell in with William's idea of using the Church as a counterpoise to the feudal barons. He accordingly made the bishops hold their lands on baronial tenure, and by an Ordinance gave them ' S. C. 85. tribunals of their own.' At first sight it seems as if, in striving to correct the centrifugal tendencies of Anglo-Saxon institutions and of feudalism, the Conqueror had merely substituted one kind of disruption for another. But it must be remembered that the Church was ' the sole depository of mental and moral authority,' and that it was only by such isolation from the world of the feudal baron that its full effect as a civilizing agency could be felt. Anselm and Becket, either or both, may have been fighting for their order rather than in the general interest of the nation ; but behind the actual subjects of their contest lay that principle of appeal to some other standard than brute force, which the whole existence of the clerical order represented. Yet none the less was the Church inimical to the growth of nationality. William tried to provide bulwarks against the interference of Rome. He not only exercised the power implied in the direct appointment of bishops and their investiture with the ring and crozier, but he also refused homage to the Pope, and issued, in the form of a declaration of old customs (Consuetudines), four prohibitions of the exercise of important ecclesiastical powers without leave lis results, of the Crown. l>ut this policy depended for its success on the harmonious working of the local heads of Church and State : for, when the throne fell to a less statesmanlike monarch, the archbishop would be bound to fortify himself and his order by an appeal to that clerical immunity from lay jurisdiction of which William I himself had laid the foundation ; and, in the last resort, to that very papal influence which it was alike the interest of king and bishops to exclude. Moreover, this close alliance between the heads of Church and State, while for a time moralizing the action of the State, tended inevitably to feudalize all ecclesiastical relations. Bisho{)rics became the reward for temporal service : the feudal passion for exemptions and special jurisdictions helped the growth of clerical immunities. Stress was laid on rights rather than duties, and it was this weakening of the inherent feelings of responsibility which THE EXECUTIXK Ai\D l,i;( ilSLATU KE IN CONl'XICT 289 enabled \Villiam II and his minister, Ranulf I'lambard, to deal with the property of the Church on the principles which they applied to the fiefs of lay barons. The futility of Anselm's continued protests led him finally to betray the nationality of the Church, which as a foreigner he had never valued, and to seek counsel from the Pope. TheJwQ^forces» then,, vviiicli, th reatene d to circumscribe the .growth of the, executive, w^re the _provinciaUsm of the .feudal baronage— aad-the cosnioparila,ai5m.. QLihe...Church : the one, (3) feudal- with the aid of the rest of the nation, the king crushed : with ^^^' the other he found it more advantageous to come to terms. For a century the baronage struggled in arms against the 1074-1174. Crown, generally finding a leader among the members of the royal family. Their chief strength lay in those continental connections which enabled them to enforce'their own appeal to arms by a rising in the foreign dominions of the English king. Henry I attempted to sever the Norman and English barons by confisca'ting the estates of rebellious Normans on this side of the Channel. But the twenty years of anarchy associated Henry I's with the name of Stephen, destroyed the good effect of this and ??^ other measures directed to the same end. Henry H went anti-feudal steadily to work on the lines laid down by his grandfather, policy. On the one side, he ii7tdermined the feudal position a?id privi- leges of the barons. Henry I's Coronation Charter ^ not only re- ^ S. C. 100. nounced the feudal tyrannies in which William II had indulged, but even enforced on the great lords a similar conduct towards their vassals. The same king probably also began that system of scutage, or acceptance of payment in lieu of personal service, which destroyed the principle of the feudal army. Henry II continued this, and even transferred the feudal tenants so dis- armed to the ranks of the fyrd ; while he included the feudal jurisdictions in the judicial system of the country, by enforcing in the Assize of Clarendon the supervision of his sheriffs 'and ^'^^ justices. On the other side, Henry I and his grandson both strove to counteract the influence of the baronage by the formation of a strong ce?itral government. This was begun by Henry Fs great minister. Bishop Roger of Salisbury, in his organization of the machinery of the Exchequer. He created his own staff out of the ' novi homines ' or new official nobility who were planted upon the lands of the North left desolate by U 290 ENGLISH CONSTITUTIONAL HISTORY Their partial success. 1204. 1215. Henry's father. Out of these were taken the sheriffs, who summed up the local administration ; and the barons of the Exchequer, who went round, although in irregular fashion, to watch over the conduct of the sheriffs and to listen to any local complaints that might be preferred against them. Henry H carried this organization further. In the absence of law and amidst the conflict of customs, he made the custom of the king's court prevail over all others until it gradually hardened into the Common law of the land. He continued the creation of an administrative class to whose members he finally entrusted all the sheriffdoms. By thus making the sheriff a mere official of the Crown he kept a constant connection between the central and local government ; and, not content with that, he subjected him to the supervision of frequent royal commissioners, travelling now in the capacity of barons of the Exchequer, now as justices on circuit. It was the attempts of Henry II to curb their privileges that drove the feudal barons to their last insurrection in 1174. The fidelity of the king's officers and the sympathy of the people gave the victory to the king, and inflicted on English feudalism a wound from which it never recovered. Henry's complete success daunted the barons too much for them to attempt anything more while he lived ; and his suc- cessor occupied them in the Crusade and his French wars. But it was the loss of Normandy which really placed the feudal baronage beyond any hope of recovering their position ; for it forced them to decide whether they would be Normans or Englishmen, and taught them for the first time that they had interests in common with the people. Their momentary championship of the popular cause at Runnymead led to their control over the administration during the minority of Henry III. But this only sufficed to show their selfishness and incapacity. Their patriotism was founded on nothing deeper than hatred of the foreign favourites of the Crown. They sought to secure the appointment of the sheriffs and the ministers, while they obtained for themselves exemption from attendance at the popular courts and attempted to conduct the administration by committees of jealous barons who neither did anything themselves nor allowed anything to be done. Henry Ill's only attempt at influencing the baronage was to concentrate all THK EXI-:CUTIVK AND LK(;ISLATURK IN CONFLICT 29I the great titles by marriage in the members of the roval family. The later Anglo-Saxon kings had treated the ealdor- nien in a similar manner. But this was never a solution of the difficulty. Certainly a small party, headed by Simon de Montfort, rose superior to the interests of its class. But, as in the contest which procured the Charter, this was a momentary divergence from their general line of conduct. Edward I had to go to work in a way very similar to that I-'dward I's of his great ancestors, the first two Henries. The institution ^f^'-feudal of scutage and the loss of Normandy had done their work, and the feudal army no longer gave any cause for fear. But the feudal jurisdictions had grown from appropriation of royal rights; and Edward's issue of writs Quo Warranto was 1278. directed to the establishment of the difference between manorial rights which could be left to the lords ; and feudal rights as such, which were now treated as usurpations of the regalia. The baro}is were still, however, too strong to be overborne. Edward preferred, therefore, to attack them indirectly . Setting before himself as a principle ' the elimination of the doctrine of tenure from political life,' he began by diminishing the importance of a feudal status. For this purpose he perfected the measure of Distraint of Knighthood, begun by his father, which made knighthood a mere question of income ; and he emphasized the sufficiency of the royal summons apart from tenure as a qualification for the membership of the royal Council. But he could go no further in his direct attacks upon the barons ; for, the people were insufficiently organized, and the Church with its foreign ties could not be depended on. He had, therefore, even to brioe the great barons into acquiescence with his general schemes by allowing them to share in the advantages of that land legislation which, by the statute De Donis, established entail ; by De Religiosis, pre- vented the' alienation of lands to the Church ; and by Quia Empt^res, put an end to the losses which accrued to the' superior lords through subinfeudation.^ But the real force ^ But see which was counteracting the power of the barons, was the ^' ^'^ continued development of a strong cejitral government. Henry I's measures had been retarded by the anarchy of Stephen's reign, Henry H's by that of the reign of John. The long strife of his father's time emboldened Edward 1 to strengthen the 292 ENGLISH CONSTITUTIONAL HISTORY Crown by every means at his disposal. For purposes of administration he formulated the Concilium Ordinarium, and made it more than formerly dependent on the Crown. He further simplified and defined both the provincial jurisdiction of the judges in the Statutes of Westminster I (1275), Gloucester (1278), and Westminster II (1285) ; and the work of the Courts of Common Law by the Statute of Rhuddlan (1284), and the Articuli super Cartas (1300). ofTna-^"" But Edward's great work was the incorporation of the lional legis- people in the government by the completion of the forrn of lature. the National Parliament. This popular participation had been the strong portion of the Anglo-Saxon system which \\'illiam I had continued. He retained the local organization for the administration of justice, in the courts of shire and hundred^ and for internal defence, in the liability of all freemen to the fyrd. Both were placed under the sheriff, whom the abolition of the local earldom left as the sole representative of the central government in the provinces. Every precaution was taken, while strengthening his local power, to keep this official in proper subjection to the royal administration. Henry I and his grandson both appointed royal officials to the post, and subjected them to the supervision of other officials. Part of their duties were made over to other specially-appointed persons. Their tenure of office was limited. But chiefest of all, the people were enlisted on the side of orderly govern- ment ; and in nearly every department of business the sheriff found himself under the necessity of relying on the co-operation of a representative body of the neighbourhood. ^Villiam I had already used the system of witness by local committees in compiling the Domesday Book. Under Henry II, the same system was gradually applied to the needs of civil and criminal justice, and even to the assessment of taxation. The establish- ment of trial by jury did away with the earlier and more conjectural methods of compurgation and ordeal. The ex- tension of the principle of local representation to the region of taxation, led directly to the formation of a National Parlia- ment. The principle was first applied indirectly. By the Assize of Arms in 1181 the old fyrd was reorganized on the basis of differences in individual wealth, and each man's Habilities were determined by a jury, that is, a sworn THE EXECUTIVE AND LECISLATURE IN CONFLICT 293 committee of his neighbours. The liability lasted on ; and the force itself, placed under its own constables and super- vised by special justices, settled into the position of a local police. Meanwhile, with the increase of commerce and wealth, the levy of taxation on personal property was be- coming as usual as it was profitable. This called for the continual activity of juries elected in the local courts, in which the greater barons were no longer present. But the larger part of this personal property was to be found in the boroughs on which the kings from Henry I onwards had, sometimes from an enlightened policy, but oftener in return for a sub- stantial sum of money, bestowed the powers of self-government. 'Both classes — representatives of shires and of boroughs alike — owed their summons before the king to a series of accidents ; but if the Charter was to be a real guarantee against royal tyranny, something more was needed than a baronial council disposed to hold the crown in commission. Thus Edward's early recognition of this, which ended in the creation of the 'Model Parliament,' was followed almost immediately by the 1295. great Confirmation of the Charters, to which subsequent 1297. generations so frequently appealed. § 41. From the definite establishment of a legislative body Relations apart from the executive, the struggle of the executive against between the disruptive tendencies of feudalism gives way to the question j.jyg ^^^^ of THE RELATIONS BETWEEN THE EXECUTIVE AND LEGISLA- legislature. TURE. This now becomes the central feature of English constitutional history. From Edward I onwards, the King-in- 1 v ./'^ Council and the King-in-Parliament tend to fall apart. The_' king preferred to act through his Council, but was obliged occasionally to act through the larger body. In 1322 Edward II assented that all the affairs of the country should be ' treated, accorded and established in parliaments by our lord the king, and by the consent of the prelates, earls and barons, and commonalty of the realm.' Edward Ill's continual necessities were the occasion for the acknowledgement of all kinds of powers as residing in the Commons ; but, at the same time. Early pre- the reiterated petitions of Parliament against the action of the dominance Council show that the executive was all-powerful, and that executive, the grant of extensive powers carried with it no real authority beyond an occasional opportunity of hampering the govern- 294 ENGLISH CONSTITUTIONAL HISTORY Triumph of the legislature, I399-H37- 1407. 1401. ment. Nor did the extraordinary prosperity of Parliament under the Lancastrians, tell a really different tale. The powers won early in the fifteenth century were little more than a repetition of those which had been partially acknowledged by Edward III. The confirmation which they obtained under the Lancastrians, was the result of a reaction following on Richard II's attempted despotism. To the factious Lords Appellant Richard opposed all the discontented classes in the kingdom, whether Lollards or unenfranchised peasants, who had equally participated in the Peasants' Revolt of 1381. The division of his enemies enabled Richard to use Parliament for effecting his purposes ; and a carefully packed House of Commons made the king independent of further supplies by giving him an income for life, and delegated its authority in the matter of petitions to a small committee of both Houses which the king could easily influence. The Revolution of 1399 has often been compared to that of 1688, for they both represented in one aspect a conservative and orthodox reaction. Henry IV came to the throne as the champion of the Church against the Lollard tendencies of Richard's court, and as the upholder of constitutional govern- ment against Richard's despotism. But in another aspect, the accession of the Lancastrian dynasty meant the triumph of the legislature over the executive. For, Henry's title was merely parliamentary. He was thus doubly pledged to the main- tenance of constitutional rule ; and it is not difficult to under- stand the meaning of the extraordinarily full privileges and powers which were obtained by Parliament from the Lancas- trian kings. Thus (i) control over taxation was secured through the establishment of the power of the Commons to initiate money grants, of tlie principle that redress should precede supply, of the appropriation of supply and of the audit of accounts. To this was added (2) control over legisla- tion, partly through the influence which Parliament possessed in the nomination of the Council, but chiefly through the substitution of the form of bill, or actual wording of the subsequent statute, for the old petition. The germ of parlia- mentary privileges is found in the assertion of (3) freedom of speech. But all these were of little account compared to the maintenance of (4) ministerial responsibility. In moments of THE EXECUTIVK AND EEGISLATURE IN CONFLICT 295 extreme aggravation the legislature had sometimes demanded the right of electing the chief ministers. This had been en- forced by the capital punishment of the obnoxious minister and, under I'^dward III, by the practice of impeachment. These were, however, heroic remedies. The circumstances under which the Lancastrians came to the throne, established a sounder method. The election of ministers was impractic- able ; but up to Henry VI's assumption of the government in 1437, the Council was little else than a committee of parlia- mentary nominees ; for, the king nominated its members in Parliament, which more than once felt itself justified in passing what amounted to votes of confidence in the ministers. The influence of the Commons extended even to (5) direct control over foreign affairs, a power which they had definitely rejected when offered for sinister reasons by Edward III and Richard II, but one which under the changed conditions they did not hesitate to wield. But this triumph of the legislature over the executive was Its failure. far too premature. It was useful as aftbrding precedents to a future time ; but, at the moment, the extensive rights enjoyed by the Commons were a hindrance to constitutional growth ; for they only served to hide the insurmountable obstacles in the way of efficient government. In the fourteenth century, the chief obstacle to the progress of the Commons had come from the jealous attitude of the king who, as the bonds of parliamentary control were drawn tighter round him, used every indirect means of loosening the threatened pressure. In the fifteenth century, owing to the peculiar position of the Lancastrian dynasty, this influence was usurped by the nobility. The Commons could protect themselves by procuring legisla- tion against the unlawful action of the sheriff, and could maintain a theoretical control over the nobility in the super- vision of the Council ; but unassisted by the weak executive, they were powerless against that enormous local influence which, upheld by the practices of livery and maintenance, defied royal judges and sheriffs, and revived the old feudal evil of private war to an extent unknown in England since the anarchy of Stephen's time. The cause is to be sought in the history of the preceding Causes of century. The success of the royal policy in abolishing all *-^^ lailure. 296 ENGLISH CONSTITUTIONAL HISTORY privileges connected with the feudal status, had been largely counteracted by two measures : — Henry III accumulated the great titles within the royal family, while Edward I was compelled to share the advantages of his land legislation with the greater barons. As a consequence, the nobility concentrated upon itself, and became an intermarrying and exclusive caste. Since land could now be both freely alienated and also tied up in entails, estates were accumulated in the hands of a few great owners. Thus all disputes between individual nobles were enhanced by the fact that they gathered up at once the special bitterness of family feuds and the petty and hereditary jealousies which spring from neighbours' rivalries. But further than this, the growing practice of entails prevented the younger son from obtaining any settlement upon his father's lands. He was compensated by the creation of small sinecure offices of state and by the appropriation of all lucrative ecclesiastical posts. In other words, the great nobles, not content with disposing of their own extensive patronage, usurped much from the Crown, sometimes in return for bribes (a system of traffic termed ' brokage '), ' Plummer, sometimes merely to extend their local influence.^ or/t'sci/e, From three sides might this influence have been checked ; but, despite the addition of the Lancastrian inheritance, the Crown was impoverished by the large grants which it had to make as hush-money to the nobles. It was, consequently, unable to deal severely with great offenders who had it in their power at any moment to open the question of its right to the throne ; while its attempts to found its claim upon a brilliant foreign policy ended, after a momentary success, in an ignominious failure which brought about the very rivalry which that policy was intended to avert. Nor was the law any more capable of restraining the nobility. The early part of the fifteenth century was a time of great legal advance. Chancery was developing its procedure and the common-law judges were pronouncing judgements which would be cited for many generations. Yet the administration of the law was full of the most flagrant abuses ; for, writs of all kinds, even royal writs interfering with the course of justice, could be readily purchased ; and the nobles did not scruple either to intimidate the local courts or to ignore adverse decisions of THE EXECUTIVE AND EEGISLATURE IN CONELICT 297 ii superior tribunal. 7\ir/ia?iiciit was no less powerless to aid; for not only were the Commons wanting in permanence and themselves an oligarchy, split up by religious differences and subject to the influence of the nobles ; but their supervision of the executive was little short of dictation — a function for which their want of a wide experience entirely disqualified them. The whole position has been summed up in the phrase that Constitutional progress had oiiirim adtninistrative order. It does not help us much to say that the Lancastrian rule was constitutional, thereby meaning that in its strongest moments it attended to legal forms and acted in harmony with Parliament ; ' for, the real power lay not with king or 1 Cf. S. C. H. Parliament, but with an oligarchy of nobles, whose local and S^j- family quarrels made government impossible alike at home and abroad. § 42. It is not unfair, however, to call the Lancastrian era Triumph 'a great constitutional experiment.' The triumph of the legis- °' 'f^^ . . . executive, lature which was its key-note, was of short duration. Already 1437- 158S. in 1437 the executive, in the shape of the Council, had freed itself from the trammels imposed on it during nearly forty years ; and on the accession of the Yorkish dynasty, strong in the possession of hereditary claim and successful on the battle- field, it obtained an authority which it had not wielded since the creation of Parliament. Nor was this only because Parlia- ment as an institution had met with complete discredit. It had certainly failed as an active engine of government, and it was becoming increasingly less representative of the interests of the nation. It was, therefore, without exciting any popular commotion, that Edward IV began the policy of dispensing 1461-1529. ivith Parliament, which his successors for a while continued. The later fifteenth century was everywhere a time of great social reconstruction. The two great mediaeval bonds of Feudalism and Catholicism were both relaxed. The intense local spirit of the first and the universal claim of the last were both giving way to tl"we rising claims of nationality in State and Church alike ; and in the midst of this transition every one looked to the monarchy as the one stable power. In England, as elsewhere, a succession of able sovereigns answered the call upon them, and used their opportunities to build up a strong executive. The first need of the govern- 29S ENGLISH CONSTITUTIONAL HISTORY ment was (i) s of influence was frequently demonstrated ; so that the Crown not only could not afford, but did not venture to ignore the evident wishes of the nation. The history of Cabinet Governmetif is dealt with elsewhere. Here it is necessary to notice that in it lay the solution of the question between the legislature and the executive; that under William III and Anne the solution had advanced a very little way ; for, accident and not principle had occasionally called into existence a number of ministers of homogeneous opinions, who entirely repudiated any corporate responsibility. This corporate responsibility, which is of the essence of Cabinet government, only came into being when George I for obvious reasons absented himself from the dis- cussions of his ministers. The system was only gradually worked out to its modern perfection ; but long before the personal action of the Crown was eliminated, it was recognized THE EXECUTIVE AND LECIISLATURE IN CONFLICT 315 that a close harmony between the ministers and the majority in Parliament was necessary ; while the clumsy method of punishment by impeachment of an individual minister gave way to the less severe but equally effective withdrawal of parliamentary support from an unpopular ministry. The full effect of these safeguards in preventing an undue Results on extension of the power of the executive may be realized from ^'^"^ '^y-^' an exammation of the present use of the royal prerogative, ^j^g^ The prerogative has been described as ' the discretionary power of the Crown.' But inasmuch as the Crown acts solely by advice of its ministers, the royal prerogative is a reserve power in the hands of the Cabinet of the day, and its use is regu- lated by those conventions of the constitution which are meant to stand between the several members of the sovereign body of the Crown in Parliament and a breach of the law. This may be illustrated in detail. Among the methods which \Villiam III employed to keep the executive authority in his own hands, was the use of the royal veto on bills that had been accepted by both Houses of Parliament. He could no longer bully the Commons as the Tudors and early Stuarts had done, and in the state of popular feeling his method of influencing them indirectly met with only qualified success. Consequently, his use of the veto on no less than four occa- sions—a bill for securing the independence of the judicial bench (1692) ; ^ a triennial bill (1693) j-^ a place bill (1693) ;^ ^ Macaulay and an election bill (1696) ■* — exceeded any previous example. ^'^^^ y. Nor did after-events make it less unique ; his successors forged 219-220. new means of influencing Parliament, and, except indirectly, "^P^^- dared not oppose the constitutionally expressed wishes of the "/a'v°' nation. Thus, with the single exception of a Scotch Militia iv. 49. Bill in 1707, the veto of the Crown has not been used in the f !f>id. British Isles for nearly 200 years, although its exercise is not'^' ^'^ altogether unknown in matters which emanate from colonial Parliaments. Here there is practically no scope for the personal discretion of the Crown. Nor in the old prerogative power of sumvioiiing Parliament has anything been left to the Crown. The Triennial Act, which William vetoed, was passed in 1695 ; and, while the law henceforth demanded a Parliament at least once in three years, the necessity of obtaining supplies for the army ensured annual sessions. This period of three years was 3l6 ENGLISH CONSTITUTIONAL HISTORY extended to the seven of the present time by the Septennial Act of 1 716. The legality of this measure has been often questioned. P'or, the Parliament which passed it, in fear that a general election so soon after the accession of the Hanoverians might be fraught with danger, applied its provisions not only to future Parliaments but to the existence of the sitting House. This was no doubt a breach of the confidence of their con- stituencies on the part of individual members and an unprece- dented use of the powers of Parliament as a body ; but since the law courts could take no cognizance of the action, it was not illegal, and indeed its enactment has been cited as the most conclusive proof of the omnipotence of the sovereignty of ^ Dicey, Parliament in the English Constitution.^ Both these weapons, 45- then, have for some time been removed from the armoury of the executive. Far otherwise has it been with the Crown's powei' of deciding when Parliament shall be dissolved. A dissolu- tion of Parliament has been described as an appeal from the legal to the political sovereign, from the ministry and Parlia- ment of the day to the constituencies which exercise the rights - Ibid. 361. of the people."- Since the Revolution of 1688 there have been periods, such as the reign of William HI, when Cabinet govern- ment was as yet imperfect, and the early years of George HI during his struggle with the Whig oligarchy, in which the king used this power of dissolution as a threat. But as soon as the system of administration by a homogeneous Cabinet was estab- lished, a dissolution only became a means of ascertaining whether the ministry in power commanded the confidence of the people, and the king was only justified in exercising his prerogative if he had reason to believe that the original harmony between Parliament and people had been broken. Thus, in 1784, when George HI took the first pretext for dismissing the Coalition Ministry of Fox and North, and maintained the younger Pitt as his minister for three months in the face of a hostile Parliament, his ultimate use of the power of dissolution was entirely justified by the large majority returned to the next Parliament in support of William Pitt. And when in 1834 William IV dismissed Lord Melbourne in favour of Sir Robert Peel, and dissolved Parliament in the hope which proved to be vain, that the country would return a majority for his new minister, the justification of his use of the royal prerogative THE EXECUTIVE AND LEGISLATURE IN CONFLICT 317 lies in the king's belief that the old Parliament had lost the confidence of the constituencies. The prerogative for which the king fought most strenuously, was \\\s power of the choice of ministers ; and even after he had been compelled to relinquish the system of an inner and outer Cabinet or the practice of keeping one royal spy in the person of the Lord Chancellor, he attempted to exercise a choice amongst the nominees of the dominant party. Thus, by his demand of certain pledges, George III drove the Ministry of All the Talents to resignation in l807- The dismissal of Lord Melbourne in favour of Sir Robert Peel has just been noticed. In 1839 Peel, though possessing the confidence of the country, was unable to assume power because the Queen refused to part with the ladies of the bed-chamber who were near relatives of the outgoing ministry. But the Reform Act had made it impossible for the Crown to uphold its ministers in the face of a hostile Parliament. The elections of 1841 went strongly in favour of Sir Robert Peel ; a compromise was arrived at, and the Tories came into office. But although the Crown has thus practically surrendered the power of the choice of ministers, it still plays an important part /;/ the conduct of administration. Its right to be consulted was definitely asserted when, in 1851, the Queen concurred with the Prime Minister, Lord John Russell, in the dismissal of the Foreign Secretary, Lord Palmerston, who had given assurances of friendship to the French Government when the Cabinet had decided to maintain a neutral attitude. And there are moments when the personal discretion of the Crown may assume an inestimable importance. For, in the absence of any one definite head of the dominant party, it becomes incumbent on the sovereign to choose between the rival candidates for leadership. Of the influence of the long experience of an individual sovereign something has been already said. It may be noted, in conclusion, that this divorce of the ornamental and practical heads of the English administra- tion relieves the real guide of the executive of half his work, and removes from the competitors for power the men of second- rate ambition even if of first-rate ability, who are attracted by the benefits to be obtained from the highest office rather than by a feeling of devotion to the public service. CHAPTER VII ADMINISTRATION OF JUSTICE The Eng- lish system of law. (A) Na- tional Courts. Hundred. Theories of its origin. § 47. The English system of Jurisprudence is the one in Western Europe which is most purely of native growth. In France, Italy and Spain the influence of Roman law on native custom was far larger than even its most ardent champion believes it to have been between the Tweed and the English Channel. Thus in England the distinction between Covwion law and Equity takes a peculiar form. An historical inves- tigation will make comparatively clear a practical difference which legal definitions have found it impossible to determine. The earliest form of the Connnon latv of the land was in the shape of local, tribal or national customs which have given it the name of Customary law. But, for their validity, such customs demanded judicial recognition, whether the judge was the body of free suitors or an individual representative of the royal authority ; and such judicial recognition was obtained by means of three sets of courts — (a) national, those of the Hundred and Shire, [b) private, those of the Thegns and of Lords of Manors, {c) municipal, those of the chartered and privileged Boroughs. The smallest administrative division recognized in the arrangements of our medieval constitution was the Hundred. The question of its origin is one of the most obscure points in English history. No mention of the name is found on English soil until the ' Ordinance of the Hundred,' a document which at the earliest is assigned to the reign of Eadgar. It may be that the language of the Ordinance must be interpreted as presupposing the existence of the district with which it deals ; but this would not necessarily lead us to look for its origin in a very remote past. And yet the commonly accepted theory 318 ADMINISTRATION OF JUSTICE 319 seeks to connect this governmental arrangement of the tenth century with a division which the Roman historian, Tacitus, writing eight centuries earher, notices as existing among the German tribes with whom he came in contact. According to his account, every Civitas or Tribe was divided into a number of Pagi, and each Pagus contained a number of Vici ; but the organization centred round the division of the Pagus which suppHed its presiding chief with a hundred assessors when he sat to administer justice, and was responsible for a contingent of a hundred men when the tribe went out to w-ar.^ Of the ' S. C. Pagus we hear no more. In fact, if the tribes of which Tacitus 56-7- speaks were the ancestors of the tribes which conquered Britain, ' we get no authentic information of them for five hundred years. But, meanwhile, the records of the kindred tribe of the Franks in their new home in Gaul in the fourth century, tell of the existence of the Malliis — the ordinary court of justice — com- posed of all fully qualified landowners of the district under the presidency of an officer called Ccntenarius : while two centuries later the laws of the Prankish kings Childebert and Clothair '^ - Ibid. mention the local division of the Centena which possibly formed ^9> 7°- the basis of the contemporary police system in Gaul. So far as it relates to the history of the hundred before our English records begin, this chain of evidence has been most effectually broken in every link. By a masterly analysis of the Coulanj^es' few sentences in which Tacitus speaks of the system of justice criticism among the Germans, M, Fustel de Coulanges has shown that ordinary it is at any rate probable that the princeps who administered view, justice with the aid of a hundred comites, was an itinerant judge appointed by the national assembly and taking round with him, after the fashion of all Roman Judices, a chosen band of freeman (plebs as distinguished from principes) who acted as his council and, in the absence of documents, personally attested his decisions.^ No less effectually does a Recher- M. de Coulanges explain away the analogy of the Mallus. (^^^^ ""' There is nothing to show that it was an assembly, or ^'^x'^lrobiimes a system of popular judgement prevailed. It was a tribunal d'histohe, in which justice was rendered by the royal officer, and to it 361-71- were amenable not only the Franks but the Romano-Gallic inhabitants as well.'* The judge in the Mallus was the Comes ; 4 jf,j^^_ and for administrative purposes he appointed officials who are 398-402. 320 ENGLISH CONSTITUTIONAL HISTORY called by various Roman names. Among these is found the centenarius, who perhaps at first was a military ofificer — the equivalent of the centurio — and was then turned into a civil '^ La Mon- official with powers of police.' The centenarius may well archie have existed before the centena, the division over which he pranqne, . . ^ , , . , . , . 224-5. IS supposed to have presided and of whose existence there is no evidence earlier than the eighth century. The edicts of Childebert and Clothair are copies of the ninth century ; the names of the kings to whom the edicts are assigned are purely arbitrary ; and the centena seems to be a personal division for 2 Ibid. purposes of police. - 11-95- The presumptive evidence f 07- the early existence of the hundred on English soil is to be found in three directions. In the first place, the scanty collections of Anglo-Saxon dooms or laws which we possess, from the very first contain references to some subdivision of the tribal kingdoms. Thus, the Laws of Hlothfere and Eadric, kings of Kent, under date about 680, ^ S. C. 61. speak of the summons of an offender to a Methel or a Thing; ^ from the Laws of Wihtr^ed, also king of Kent at a slightly later date, we hear of a presiding official called a Reeve ; while the con- temporary Laws of Ini ofWessex make several references to shire, 4 ji,i^_ shireman and reeve.'^ The Anglo-Saxon Landbocs or Charters 61-2, afford a second line of evidence in the mention contained among §§ 8, 36, j.j^g ygj.y earliest of such documents that have been preserved to 5 H_ Adams ^s, of ' regiones ' ^ which by the aid of local knowledge and in- in Essays genuity can be identified with modern hundreds. Finally, the in Anglo- ^rj-itings of Bede swarm with references to places and districts ^>axon ° 1 • • • I- • 1 Law. which certainly were divisions of territory between the hide of the family and the administrative shire. It seems just, however, to adopt the conclusion of the writer to whom we owe the marshalling of this evidence, that the name Hundred did not appear so early, but that there is ample proof of the existence 6 Cf. also of the district which the historical hundred represented.*^ And Jenks, op. this may be the meaning of some of those numerous names of cit. 164. local divisions which exist to this day, and whose origin is as hard to decipher as that of the Hundred itself Thus, in two shires, below the hundreds come subordinate divisions — in Kent the Lathes, an organized judicial division superseding the hundred in that capacity ; in Sussex the Rapes, a mere geographical expression no doubt originating in the roping or ADMINISTRATION OF JUSTICE 321 measuring out of the land at some time perhaps not previous to the Norman Conquest. In tlie AngHan districts we get ]]'ape>tfakes, corresponding in organization to the hundred, and sometimes existing side by side with it. These are found in Durham, Yorkshire, Lincohi, Nottingham, Derby, Rutland and Leicester. In two of these — Yorkshire and Lincoln — above the "Wapentakes comes the division of the Trithifigs or Ridings. But these may be regarded as local peculiarities ; whereas in all parts of England are found the remains of subordinate divisions which go by the name of shires. Such were all the administrative subdivisions of Cornwall as late as the twelfth century, many districts of Yorkshire, and in Domes- day the divisions of the city of York itself. ' It is not impossible,' says Dr Stubbs,^ ' that the original name of the i s. C. H. subdivision immediately above the township ' (which we i- § 45- are now learning to call the tun or vill) ' was scir or shire, a term of various application.' In confirmation of this he points out that in /Elfred's translation of Bede a diocese was a bishop's scire ; while, further, the Anglo-Saxon translation of the Gospels (St. Luke xvi. 2) calls the stewardship of the ^ , . unjust steward his ' grcefscire.' - S 48 But this is not all. Two questions arise, namely, how do Suggested we account for the extraordinary variations in the size of the o'''gi^ of districts to which the name Hundred was afterwards attached ; ^^^^ \^ and, to what do we attribute the introduction of the name at England, all ? The answer may be given with much hesitation in what is after all a series of conjectures. We may suppose that at and during the early period of the settlement of the English in Britain there was no administrative district between the primary social unit of the tun — which, to avoid confusion, with Professor Maitland we may call the vill — and the political unit of the Tribe or Folk. We may even go further and believe with Professor Maitland that the area of the original tun or vill was, in the earliest settled parts, as large as the historical hundred.^ ^ Surnames For in those parts the hundreds are very small, while all over %-;ii"%^ England are found groups of villages bearing one common and Archaeo- one distinguishing name, as if to denote that they had all once }ogical, Rev, formed part of an united organization. Population would be ^^' ~^^' scattered, and yet the scanty numbers would at first forbid too wide an area of settlement. The only necessary general Y C. II. 322 ENGLISH CONSTITUTIONAL HISTORY organization would be for war, and the leader would perhaps be appointed for the occasion by the assembly of principes which Tacitus notes as the governing body of the Germanic ^ S. C. 56, tribes. ^ But when on the one side population increased, while on the other side the successful chief grew into the king, and conquest enlarged the boundaries of his kingdom, not- only would the machinery of central government expand, but some intermediate organization would also become necessary. This latter could be supplied in two ways. In the first place, the already existing agricultural units of tun or vill might be recognized as administrative districts. In the earliest settled parts of the country the population would be thickest ; so that the small size of the existing divisions would be no drawback to their adoption for governmental purposes. But in the north and the midlands the population was so sparse that these administrative divisions would have to be artificially created ; and, while being modelled on those in the south in respect of organization, in size they would tend to approximate to the larger of the existing divisions. Or the history of the con- tinental hundreds, as M. de Coulanges reads it, may have been reproduced in England, and separate portions of the country where population had for some reason concentrated, may have been gradually shorn off from the surrounding districts and organized apart. Perhaps in either of these cases the name ' Shire ' might have been applied to the resulting district : it seems probable that there was no technical name. But this became necessary as the smaller heptarchic kingdoms with their ready-made organization were absorbed into Wessex ; for, two stages of local administrative machinery now existed, and it was important to distinguish between them. Why the term shire was appropriated to the larger division of the small kingdoms and their administrative analogues, we cannot tell ; but, as a probable result, the landbocs or charters of later date than the reign of Ecgberht cease to allude to the regiones and other Latin equivalents for which the common English form was the word ' shire.' Finally, to the smaller administrative subdivision might be applied the name which, their connection with Erankish lands would teach the English kings, was the analogous division on the other side of the Channel, namel)', the Centena or Hundred. A post-Conquest ADMINISTRATION OF JUSTICE 323 Chronicler, William of Malmesbury, has preserved for us the tradition that yElfred instituted among other things the arrange- ment of the land into hundreds. Historians have come to treat this as a mere piece of gossip. But if, with Mr J. H. Round, we may argue back from the evidence of Domesday, we may believe it not impossible, though perhaps somewhat improbable, that it was -^Elfred or one of his immediate predecessors or successors who, in imitation of Frankish usage, introduced as an area for the assessment of taxation the division of the hundred on which, two centuries later, the calculations of liabilities in Domesday were apparently based. However that may be, it is from the reign of his son, Eadward the Elder, that we get what many would regard as the first unmistakable evidence of the administrative hundred. One of his dooms ordains that ' every reeve have a gemot always once in four weeks,' ^ of which the clause in the Ordinance of 1 s. C. 64, the Hundred determining 'that they meet always within four c- "• weeks,' - seems a mere confirmation. Moreover, when Eadward's - Hul 70, successor, .Ethelstan, demands that 'there be named in every ^ '• reeve's manung (i.e. district) as many men as are known to be unlying that they may be for witness in every suit ,' ^ a very ^ 3id. 66. natural interpretation connects this with a doom of the reign of Eadgar which bids that ' witness be appointed ... to every Hundred.' "* In conclusion, probably we shall not be very far •» /h'd. 72, wrong if we accept the Ordinance of the Hundred as emanating supple- from Eadgar, and regard it as a consolidation and universal ^.^p '-, application of a system of local administration already at work in most parts of the country. The remains of the Danelagh north of the Humber had only just been extinguished in* the reign of Eadred : the division of England between Eadred's sons had only just been healed by the death of Eadwig : Eadgar had at his side a statesman of extraordinary ability. Between them king and archbishop issued laws regulating the shire-gemot and the burh-gemot, the relations of the local courts to the Crown and the general police system of the country. The Ordinance of the Hundred takes its place as part of a great scheme for the consolidation of justice and police throughout the country. As to the kind and the method of the administrative work done by the hundred we have the scantiest evidence. Its 324 ENGLISH CONSTITUTIONAL HISTORY business was evidently transacted in a monthly court, and the officials responsible for its conduct seem to have been a deputy of the sheriff, who presided, and the hundred-man of the ' S. C. 70, Ordinance of the Hundred ^ or hundredes-ealdor, mentioned SS 2, 45. elsewhere in Eadgar's Laws, who was perhaps * the convener - S. C. H. and constituting functionary of the court.'- Whether, however, ^ 45- ^ye believe this latter official to have been the elected repre- sentative of the freemen, as is often supposed, depends partly on our view of the composition of the hindred court in pre- Norman times. The evidence generally quoted comes from the ' Leges Henrici Primi,' which are now believed to be a contemporary but unauthorised attempt of a Norman lawyer ^ P. and M. to bring up to date the Anglo-Saxon dooms. ^ Here it is stated 1- 77-0- that the local courts should contain bishops, earls, barons, vavasores (perhaps tenants by knight service), the reeves of tuns or vills and other lords of lands, together with a string of evidently local officials who may perhaps be classed in pairs as sheriffs (vicedomini, vicarii), officers of hundreds (centenarii, ■• .S". C. 105, aldermanni), and officers of towns (praefecti, praepositi).'* This ^"' ^' would be an exhaustive enumeration of all landholders and officials within the district; and the principle would apply as much to the hundred court as to the shire court. Another clause adds that a freeholder by his presence represents all his demesne lands (in the wider sense), but that his steward can lawfully appear for him — which would often be necessary for a lord with wide possessions. Finally, it is said that if both lord and steward had to be away, the reeve, priest and four of the more substantial men of the vill might appear and answer for all who had not been summoned by name to the court. The next clause especially applies this provision to the hundred court. ''' This evidence has been quoted at length and perhaps somewhat out of place, because upon it and practically it alone has been based the whole structure of popular representation and popular justice in the local courts before the Norman Conquest. But what is the real value of such evidence ? It is unauthoritative ; it is not even contemporary, and its purport is something quite other than is generally supposed. The priest, reeve and four men of each vill were not ordinary attendants at the local courts ; they came under special circumstances. Nay, further, whether we believe that they 5 Ibid. 105, vii. 7, 8. Cf. P. and M. i- 532-4- ADMINISTRATION OF JUSTICE 325 came at all even in the days of Henry I, depends on the view which we take of the document whence our information is derived. It may have been a record of previous custom ; it may have been a mere speculative exercise of a Norman lawyer who only half understood his subject. But the point on which stress should be laid is that, on the most generous hypothesis, the evidence cannot be extended beyond a century or so before the Norman Conquest. The system of popular representation and popular administration of justice in the local courts cannot, so far as our evidence goes, be said to have existed in the Anglo-Saxon courts before the days of Eadgar; and then the evidence does not bear upon its face any proof of a really popular organization of the local courts. P'inally, it is generally said that although 'the judges of the court were the whole body of suitors,' yet for convenience sake ' a representative body of twelve seems to have been instituted as a judicial committee of the court.' ^ But this is a generali- ^ S. C. H. zation which is based upon extraordinarily little evidence. § 4^. A law of Eadgar certainly ordains that in every hundred twelve witnesses shall be chosen before whom all commercial transactions shall take place.- But the evidence chiefly relied "^ S. C. 72. on is a law of ^"Ethelred^ which commands that the twelve ^ 7(5/^. 72. senior thegns should join the sheriff in presenting the criminals "^- ^^P- 3- of the district for trial ; but the use of the word Wapentake seems to make it only too probable that the ordinance referred merely to the northern shires — an interpretation which is in harmony with the record preserved in Domesday of the twelve hereditary lawmen of Lincoln. Nor perhaps is the evidence much strengthened by the solitary reference ^ in the large ^ Kemble, number of extant landbocs or charters to the presence of ' all P'^- ^'f^- IV. 137. the eldest thegns' m the shire court. We can, therefore, assert little or nothing about the work of the local courts before the Norman Conquest. And one consideration may encourage us to think that fresh evidence on the point would only lead us further from such generalizations as we had hitherto accepted. The origin of grants of freedom from the jurisdiction of the local courts will be discussed more appro- priately as an introduction to the history of the manorial court ; but here attention may be drawn to the fact that Domesday records cases in which the jurisdiction of the 326 ENGLISH CONSTITUTIONAL HISTORY ^ Domes- day, 351. - Round, Feudal England, 97. 3 Maitland, Domesday, 450. hundred court itself was in private hands. In Worcestershire, the sheriff reported that there were no less than seven out of the twelve hundreds in which he had no authority. The grants of Anglo-Saxon kings on which long after the Norman Conquest the abbots of the greater monasteries sometimes based a claim to a similar jurisdiction, no doubt were often forgeries ; but they may be taken as indicating a belief in the existence of such rights. Thus it is possible that from their first formation or recognition, some of the hundreds were under an individual thegn exercising powers delegated to him by the central authority, and that thus the exercise of private jurisdiction which was afterwards considered the result of a special grant, was an original form of local organization. One of the earliest rights which a tribal chief would claim would be that of sustentation at the expense of his subjects. In course of time this vague right would take the shape of a fixed tribute, rent or tax : in early days it is impossible and unnecessary to distinguish. As a result, perhaps the country would be ' plotted out according to some rude scheme to provide the king with meat and cheese and ale. ' ^ Such a scheme would probably be based on the existing division of the hide which thus became the measure of assessment disclosed by Domesday. In the early period of the settle- ment in Britain the vills and even the individual tenements would have been more homogeneous in size than they afterwards became, and this would have made comparatively easy the establishment of divisions of a hundred hides. The hundred hides may have been composed of multiples of an earlier unit of five hides,- or, by what has been com- pactly called ' the method of subpartitioned provincial quotas,' the larger district may have been divided up in smaller round numbers into sub-districts." It does not par- ticularly concern us here whether the number at which any given sub-district was rated, was distributed, perhaps in terms of five hides, among the component vills. The hides, the original settlements, might split up, and in the hands of new owners might form different combinations : but unless they became altogether exempted or the number of their assessable hides was reduced by royal favour, these districts would continue for all time to be rated at a definite number of ADMINISTRATION OF JUSTICE 327 hides irrespective of their actual size. Thus it is quite possible that the hundred originated as an unit in the assessment of the obligations of the freemen towards the king and that it was adapted to other purposes as need arose. Whether the hundred or some smaller area were the primary unit, Domes- day probably only worked upon the existing measures of assessment. Much of what has been said of the hundred applies also to The Shire the history of the Shire or, as it came to be called in Norman ^"^ County, times, the County. Without unnecessary repetition it may be said that in the organized realm of the later Anglo-Saxon kings the name is given to an administrative division of the country of a size corresponding to those among the smaller heptarchic kingdoms which were first absorbed by the growing West- Saxon monarchy. The fact that such districts possessed not only an organization but also a vitality of their own, argued in favour of their retention. And such divisions once re- cognized, would form a model on which the future provisions for local government would be based. It is possible to divide the shires of England under three separate heads according to the time and manner of their formation. Thus the system must be held to have originated in Wessex where it may be described as (i) natural and indigenous, representing either the divisions of early settlements, such as the folk of the Dorsastas, Wilssetas and Sumerssetas ; or the amalgamation of successive conquests, such as were commemorated in the continued though dependent existence of Kent, Sussex, Surrey, Middlesex and Essex. The convenience of this division resulted in its spread, though on slightly different principles from those which had obtained in Wessex. For example, Mercia was originally an aggregation of five regions representing the early settlements of mid-English folk, which Penda drew together 626-655. into a powerful kingdom. Theodore had attempted to retain the old divisions in the four dioceses into which he organized the midland Church. But after Eadward the Elder's reconquest of Mercia from the Danes, the country was reorganized in accordance with the arrangements which were in vogue in Wessex, with the difference that (2) arti^eiat instea.d of natural divisions were produced ; for, a convenient spot was chosen as an administrative centre, and a more or less arbitrary line was QTA'iTI^n^i'HAfl Sf}MM 328 ENGLISH CONSTITUTIONAL HISTORY drawn about it in utter disregard of the boundaries set by geography or race. Of this difference a proof remains to the present day ; for, whereas in the southern shires the names of the shire and of its chief town seldom correspond, the invariable coincidence of the two in the midlands preserves the fact of the previous existence of the town. A third and smaller class of the English shires is formed by those which may be described as (3) natural, but of late formatioji. These are the counties of Northumbria and East-Anglia, each of them with a separate history, which, though interesting in itself, Its Court, is not important for our present purpose. The dissimilarity of origin both as to time and circumstances of the various shires made no difference in the methods of their adminis- tration. On this point little need be added to what has been 1 6". C. 71, said already in speaking of the hundred. Eadgar directs^ cap. 5. |.j^^|- ^i^g shire court shall be held twice a year, that the bishop and ealdorman shall both be present, and that ecclesiastical as well as secular justice shall be administered. The presence of the sheriff was no doubt taken for granted, since he was probably the convener of the court. These three officials will, each in his place, deserve a detailed description. For the moment it must be enough to trace the history of the ealdorman. Ealdormen. The Ealdormen were the greatest class of early English dignitaries ; for they were the representatives and, in many cases, the descendants of the kings of the now conquered folks. This fact affected their position in three ways. In the first place, as a national officer an ealdorman was nominated, or rather perhaps co-opted, by the king and the Witan in conjunction ; for he was a member of the Witan. To this position also he owed his military leadership of the forces of the shire ; while, thirdly, under each ealdorman were grouped several shires very much after the pattern of the old ' heptarchic ' kingdoms. Indeed, there were probably never more than seven ealdormen in England at a time. This system of ealdormanic or pro- vincial rule was begun after the consolidation of England under Eadward the Elder. Thus, .-I^thelstan formed the ealdormanries of East-Anglia and Essex ; Eadwig those of Northumbria and Mercia ; while Eadgar divided the West- Saxon kingdom into three parts, known respectively as the ADMINISTRATION OF JUSTICE 329 Western, Central and Eastern provinces, in the latter of which the Archbishop of Canterbury was too powerful to be rivalled ; and finally Cnut, a foreigner and not a representative of the West-Saxon house, for the first time gave the whole of Wessex out of the king's hands. It was this government of Godwine, together with Mercia, Northumbria and East-Anglia, which made up the four ealdormanries into which Cnut is generally said to have divided England. It will appear, however, that his work was little more than a continuation of the policy of his West-Saxon predecessors. But whoever was to blame, the work of .-Elfred and Eadward the Elder was utterly undone by their successors. Indeed, the last century of early English rule, from the accession of Eadgar onwards, is merely a record 959-1066. of the struggle for power of rival ealdormen. Not that the kings neglected measures of precaution. In anticipation of the policy which proved so fatal to the Plantagenets in their later generations, they sought to connect the ealdormen by marriage with the royal family. Again, they recalled into existence old divisions such as that of Northumbria into Bernicia and Deira ; or they separated off from the greater provinces smaller governments, such as the Hwiccas and Magesa2tas from Mercia. As a third means they secured the appointment of royal favourites and even of foreigners who should be dependent on the king alone. Such were, under ^^thelred, his favourites ^'Elfric who was placed over the Central Provinces, and Eadric Streona over Mercia ; under Cnut, the Danes, Eric in Northumbria, Thurkil in East-Anglia, and, most important of all, the semi-Dane and royal favourite, Godwine, in Wessex. But the effect of this was merely to change the hereditary ealdormen into official Earls corre- sponding to the Danish Jarls, while there is no sign that the power of the office was in any way diminished. Finally, the kings would occasionally leave an ealdormanry in abeyance- for a time and merely appoint a High Reeve, whose authority was limited to the safeguarding of the royal interests. But provincial feeling was for the present far too strong, and the success of Godwine's family is sufficient proof of the risk incurred by a policy whose original object had been the easier administration of the united kingdom by the guarantee of ancient customs, laws and liberties. 330 ENGLISH CONSTITUTIONAL HISTORY Changes §48. Among tlic measures adopted by the (^'onqueior for produced retaining the old English constitution, so far as he could ConqueX'^ understand it, was the maintenance, if not the revival, of the national courts of hundred and shire. Nor was this a mere pretence. The ill-doings of William II, however they affected the local courts, evoked from his successor an additional promise of the recognition of old customs in the matter. The compilation called ' Leges Henrici Primi ' professes to show us the courts with the same constituent elements as before the Conquest : and these courts continued to use the old procedure of w'itness, compurgation and ordeal. But the very different atmosphere engendered by the Norman rule, was bound to work changes in the ancient system, and ultimately, as events proved, to supersede and thus destroy it. The most important and far-reaching of these changes may be grouped under four (I) Disap- heads. In the first place, the ealdorman or earl, as he had come pearance ^^ ^^ called, disap]Deared from the court. William I and his son Ealdorman. created very few earls, and for the most part they seem to have been regarded as successors of the English earls, that is, as great magistrates. Dr. Stubbs thinks it 'probable that some portion of the traditional authority of the ealdormanship was conferred with the title,' and that the reduction of great territorial jurisdictions to merely titular dignities was gradually worked out by the Norman kings ' and was not a principle of policy '.$■. C. H. fully developed by the Conqueror himself.' ^ W' hether the f i,^4- title was in its origin hereditary seems a disputed point.'- The S. C. H. earl's endowment of the third part of the profits of jurisdiction §124. in the shire-moot, together with the recognition of hereditary ' g ' succession in the title, seems to date from the time of Stephen. Meanwhile, however, the kings had done what they could do to strengthen their own hands in local administration ; and although they were obliged to employ men of baronial rank as sheriffs, and could not even prevent some of the sheriffdoms from becoming hereditary, yet it was directly from the Crown that the sheriffs held their authority ; while the Appointment of an earl as sheriff of his own shire was too rare to form the foundation of any administrative principle. Counties But there were a few exceptional cases which should be Palatine. noticed. These were the Couniies Palatine, as they were called — certain districts, mostly border-lands, in which, for A^^rrNI.STRATTON of justice 331 purposes of defence or as a matter of rare privilege, tlie earl enjoyed royal rights subject to the suzerainty of the Crown. William I set up four such governments — Shropshire under Roger Montgomery, which after the treason of his son, Robert of Belesme, was forfeited to Henry I; Chester under 1102. Hugh Lupus of Avranches, on the extinction of whose line in 1237 it was, except in the case of Simon de Montfort, granted to sons of the reigning king, retaining its palatine character until 1536; Kent, granted to William's half-brother Odo, Bishop of Bayeux, but forfeited for Odo's rebellion in 1082; and DiirhafH under its Bishop,' which retained its privileged position down to 1836. As a proof of the completely separate character of the government of these districts, it may be mentioned that Chester was not represented in Parliament until the reign of Henry VHI, nor Durham until that of Charles \\. There are smaller instances of similar govern- ments in Hexhamshire, which remained a County Palatine under the Archbishop of York until its union with Northumber- land in 1571 ; Pembrokeshire, which kept its privileges from its conquest by Henry I until 1536 ; and the Isle of Ely, which was a royal franchise under its Bishop from Henry I to 1538. But the only subsequent instance of the grant of these royal privileges on a large scale, was that of Lancaster, which was given by Edward HI to his cousin the Earl, or Duke as he shortly afterwards became. In the person of Henry IV the Duke of Lancaster became also king ; but it was not until the attainder of Henry VI that it was definitely united to the Crown as such, and even this union, though confirmed by an Act of Henry VII, left it ' under a separate guiding and governance from the other inheritances of the Crown.' . Thus in the counties of Chester, Durham and Lancaster, which alone are of importance, the king's writs did not run : the sole ad- ministration of justice lay with the earl in whose name writs were issued and offences were punished as against his peace. They all had Courts of Common law and separate Chanceries, the judges of which were appointed by the earls until 1536, when many of the special privileges were curtailed by Statute. The 27 Hen. Chancery Court of Lancaster still exists; but the Courts of ^'^^^- ^- ^4- Pleas at Durham and of Common Pleas at Lancaster were abolished by the Supreme Court of Judicature Act of 1873. JO- ENGLISII CONSTITUTIONAL HISTORY the Sheriff. The removal of the ealdorman from the shire court left the way free for the advancement of the sheriff to supreme (2) Supre- power in local matters. Originally the sheriff had been the Ih^'^^i? 546. Maitland, Select Pleas, xxviii.- (3) Direct interven- tion of the Crown by Monopoly of criminal justice. The procedure of the Sheriff's Tourn ^ needs a detailed description. There were present before the sheriff representa- tives from each police district whether vill or tithing. From the former came the reeve and four men, from the latter the tithing man. In places where both systems prevailed, both sets of representatives would come. In addition to these there would be a jury of twelve freeholders to do duty for all the freeholders in the hundred, who probably in theory should have been present. Before these representatives of vills and tithings the sheriff placed a set of inquiries called ' the articles of the view,' different in different places and at different times. The object of these was threefold — to see that the proper working of the system of frankpledge was kept up ; and to get accusations both against those suspected of serious crimes so that they might be kept in safe custody until the next visit of the royal judges ; and against those accused of all kinds of minor offences which the sheriff himself was empowered to punish summarily by amercement. The answers of the re- presentatives of vills and tithings took the shape of present- ments : the names of those presented were laid before the twelve freeholders, and those accusations which they en- dorsed were dealt with according to the gravity of the offence. Finally, the sheriff as sole judge decided whether a suspect should be kept for the king's judges or should be let off with an amercement ; but in the latter case he did not settle the amount which was to be paid. Two or more suitors of the court were chosen for the purpose at the opening of the court, and took an oath that they would do the work justly. The last class of changes wrought by the altered circum- stances of the Conquest in the local courts, came from the active interference of the Crown in provincial administration. This took three principal shapes, (i) It will be seen presently that in their criminal code the Anglo-Saxons had reached the point at which all except the most serious crimes could be atoned for by payments of various kinds. Criminal justice was thus a source of revenue ; and when the king was assert- ing his position as supreme judge in the land, an additional incentive was given to his desire to reserve certain classes of cases for trial by himself or his officers alone. It is in Cnut's Laws that we lirst find a list of what came afterwards to be ADMINISTRATION OF JUSTICE 337 called Pleas of the Crown. It included a comparatively small number of offences, consisting chiefly of acts involving or likely to involve serious breaches of the peace, and of neglect of military duty ; and these were cherished quite as much for their saleable value as for the special power with which they endowed the royal authority. Even after the Norman Con- quest the kings did not hesitate to grant away all kinds of important rights of jurisdiction ; but the mere fact that the powers granted grew more extensive with the lapse of time, shows that the claims of the king were rising until they in- cluded the right to prohibit the exercise of any criminal juris- diction except such as had originated from an express royal grant.' ^Vhere these powers had not been granted away they ' P. and M. were exercised at first by the sheriffs, then by specially ap- 1: 5o3-4 ; pointed officers called Coroners, and finally they were reserved for the hearing of the king's judges in their circuits. (2) It is only in quite modern times, since the Judicature Act of 1875, that there has been any strict system of appeal from court to court recognized in English Common law. But the evolution of the system of writs enabled the king to offer remedial justice to all his subjects who would pay for it. Even Evocation in Anglo-Saxon times a litigant could ' forsake ' the proposed "^ causes. doom or judgement of the local court by charging with false- hood the doomsmen who uttered it. With the introduction of a system of writs a litigant could obtain a writ of false judgement by which the sheriff or other official of a local court was bidden to send before the king's justices four suitors of the court bearing a record of the proceedings of the case in question. If the facts of the record were disputed, battle might ensue between the complainant and the champion of the local court : if they were admitted, there would be a question of law for the judges to decide. False judge- ment would lead to amercement. Again, actions begun in seignorial courts and in a lesser degree those begun in shire courts could be removed before judgement for hearing by the Curia Regis. Even actions that had been heard by the itinerant justices who were regarded as part of the Curia Regis, could be evoked before one of the central courts which during the thirteenth century became permanent at West- minster ; and the errors of the judges would be corrected. Even 338 ENGLISH CONSTITUTIONAL HISTORY the ecclesiastical courts were subject to the interference of the Crown ; but after the failure of the direct attempt to supervise them by the Constitutions of Clarendon, the safest method of asserting the royal power was by the issue of prohibitions to the ecclesiastical judge to meddle with any particular suit. (3) But there were smaller and less pleasant ways by which the extent of the royal power could be brought home to the Arbitrary suitors of the local courts. Every offender was regarded at amerce- ^j.gj. ^^ ^ self-constituted outlaw whose life and property lav itient. . ^ at the mercy of the king. But the king found it more profit- able to allow the offender to condone his offences by the pay- ment of a sum of money, which, when it was arbitrary, was known as an amercement. A great number of such payments came to be fixed sums ; but the kings were always interested in declaring that offenders lay ' in misericordia sua,' so that they could adapt the penalty to the position and wealth of the culprit. It was, however, regarded by the people as a hardship, and Henry I promised in his charter that a penalty of the 1 S. C. loi, kind should be moderate;^ and in his charter to the citizens ^ of London, that it should not extend beyond the citizen's zvere -Ibid. 108. of a hundred shillings;" but a greater safeguard lay in the custom sanctioned by Magna Carta (§ 20) by which amerce- ments were 'affeered,' that is, the sum to be paid was fixed by a small committee of a man's social equals. It was this clause which also prevented the imposition of a fine in the modern sense; but imprisonment was indefinite in Common law, that is, ' during the king's pleasure,' and the judges devised the method of passing sentence of imprisonment and then allowing a prisoner to make an end (finem facere) of the matter by paying a sum of money. Imprisonment was a troublesome and unsafe method of dealing with offenders : 3 p. andM. a sentence of imprisonment, therefore, became merely a method ii. 512-517. Qf inflicting fines without violating the Common law.'' lurisdic- § '1-9- "^^^ second class of courts through which the Common lions. law of the land was administered, were those of the English *p. 14. thegns and of the later lords of manors. We have seen'* that Their the widest chasm to be bridged over between the Roman origin. ^p(j ^j^^. feudal manorial systems is presented by the absence in the former of that right of private jurisdiction which is so essential a feature of the feudal system. Here we are not ADMINISTRATION OF JUSTICE 339 concerned to build that bridge. All that need be said is that the origin of private jurisdiction in I'^ngland is a much dis- l)uted point. The Anglo-Saxon terms which denote it — sake and soke — are practically never found as a formula before the reign of Eadward the Confessor; and while we may reject Kemble's explanation of their late appearance, that ' they were so inherent in the land as not to require particularization ' ^ ^ Cod. Dipt. in the grants made by the kings, there is little consolation '• ■'^^'^'" in Dr. Stubbs' remark that they 'occur almost universally in "'^" ^' ^■ Norman grants of confirmation, as describing definite immu- 3 ^'.. nities which may have been only implied, though necessarily introd. to implied, in the original grant, and customarily recognized Domesday, under these names.'- Many writers have tried to explain the V-^^ui two words.' One (it does not much matter which) may mean Cod. Dipl. the right to the jurisdiction itself: the other, the right to the i- ^1^- amercements arising from it. Dr. Stubbs concludes that it is s 7^ note ' an alliterative jingle which will not bear close analysis ' ; and to Adams, this explanation Professor Maitland appeals in evidence of the ^^^^y^ "' antiquity of the phrase.'* There is no doubt about its meaning Maitland when it appears : it carries with it the jurisdictional powers of a Select manorial court. Two explanations of its late appearance have -^^^'^■^' ^^"' been offered. Mr. Adams notes that the word ' soke appears day, 84-5. before its companion and that the earliest extant charters contain 4 Domes- grants of the pecuniary profits of justice which otherwise would <-^<^y-' 266. have gone to the king. He explains that the jealousy of the magnates towards the king prevented the amelioration of the law and thereby encouraged a resort to the arbitration of the lord in preference to the national courts. Such arbitration would be conducted according to the judicial forms in use in those courts. Then, from the continent came the idea that the administration of justice was no less a possession of the king than the land and offices of which he had been wont to dispose ; and Eadward the Confessor's additional grant of ' sake ' conferred on the arbitration of the lord the status of a legal court. It seems doubtful, however, whether the meaning of the terms ' sake and soke ' would have been lost so soon after the Conquest, if the rights which they expressed had been formulated so late, and as the result of a definite royal grant : Professor Maitland points out that the formula, of which this jingle is the indispensable part, appears at the time when 340 ENGLISH CONSTITUTIONAL HISTORY royal writs were taking the place of the Latin charters. Such writs were less formal than the charters, and under Eadward the Confessor they were usually written in English. The first fact may well lead us to think that many of the early writs have been lost : the second would explain the appearance of the formula in question. In any case there seems ground for believing that the origin of private jurisdiction is to be sought long before the eleventh century. We have seen that grants of bookland transferred to the grantee the right to certain or, in extreme cases, to all of those dues which would otherwise have been paid to the Crown by the inhabitants of the land which was the subject of grant. Now, among these transferred rights was often included one which practically made over to the grantee the right to the wites or penalties due to the king in compensation for crimes committed on the granted land. In view of the fact that ' even in the days of full-grown feudalism the right to hold a court was after all rather a fiscal J!^°"''!^^ than a jurisdictional right,' ^ we may easily believe that the question how the dues should be collected was a matter of comparative unimportance. The grantee might use the exist- ing machinery of the neighbouring local court for their exaction : even if the ' superiority ' given him extended over the whole district from which suit was due to the court, it did not alter the method of procedure. His steward took the place of the local bailiff, but the suitors still remained the judges of the court. Such lords might be the ' landricas ' mentioned in the laws of the last century of Anglo-Saxon history. Domesday records many Hundreds of which the soke was in the hands of private lords. But the lord might set up a court of his own. In this case he was merely regarded as owning the soke of a certain portion of the hundred and those who did suit at his court w^ere naturally exempted from attendance at the local court. Here was the be^i7ining of seignorial jurisdiction. By the time of the Norman Conquest these private courts were becoming too numerous to be regarded as separately organized portions of the hundred. But it was the Norman lawyers who simplified the confused relationships of Anglo- Saxon days by consolidating landownership with jurisdiction over all the inhabitants. So far we have been speaking of the day, 277. ADMINISTRATION OF JUSTICE 34 1 holders of bookland — the great churches and monasteries, and a few of the greatest thegns. The jurisdiction bestowed on them was of the most extensive kind : in some cases even the ' trinoda necessitas ' was not excepted from the grant. True the grant does not extend to the ' botless ' crimes : the king retains in his own hands the highest criminal jurisdiction. But in reserving for himself the cognizance of certain specified classes of offences as pleas of the crown, Cnut appears to be trying to draw a line before it is too late, beyond which such grants shall not be carried. But the feeling of the time is too strong for him. The only way to repress violent crime is to arm with the fullest authority the person of supreme local influence. Hence Cnut himself is found granting away the very jurisdic- tion which he has just reserved for the Crown. The result was that although the grants of ' sake and soke ' denoted powers which were only in the king's gift, apparently they would have left the Anglo-Saxon king with no jurisdiction of any kind except in the last resort.^ Moreover, the owners, of these 1 />. fl;;^//!/. great ' superiorities ' not only loaned out portions of their land, J- S^S- but even delegated jurisdiction to others. The two did not by any means go together ; a man might hold his land of one lord and be in the soke or jurisdiction of another. Many such owners of soke would not be in a position to hold a court of their own : there was no necessary connection between the holding of a ' manerium ' and the exercise of jurisdiction over its inhabitants. Such an owner would generally content him- self with claiming his wites and other dues through the local hundred court. But meanwhile, in its intense anxiety to cope with violent crime, especially with theft, the law was making the lord increasingly responsible for the appearance if not the actual conduct of his men and, when taxation became important, for the payment of their portion of the Danegeld as well. Thus, much of what was meant by seignorial power was being rapidly consolidated just before the Norman Conquest. Per- haps, after all, the simplification of relationships undertaken by the Norman lawyers was no such gigantic task as is usually supposed. At any rate it was very soon carried through. With the Norman Conquest the questions connected with The effect private jurisdiction alter in character. Under the Anglo-Saxons $f ''^^ {/^ such jurisdiction perhaps implied the right to hold a court, Conquest 342 ENGLISH CONSTITUTIONAL HISTORY on their develop- ment. '^Select Pleas,^ xlii-lii. P. and M. i- 573-4. 2 S. C. 386, §29. 3 Ibid, 404, §16. Cf. 386. Petition of Barons, §29. *Vide below, P- 377- 6 Select Pleas, lii-lx. Distinction between Court Leet and Court • Baron. but did not necessarily result in a court, much less in any classification of courts. But now that the possession of a manor was held to imply a court, subinfeudation meant the existence of a hierarchy of courts. In the language of the Norman lawyers, the old owner of bookland was now possessed of an Honour, that is, of an aggregate of manors. The lawyers tell us that, although a manor necessarily carried with it the right to hold a court for its inhabitants, even if the manors which formed an Honour were contiguous, there was no common court ; justice in England was strictly manorial, bound up with the possession of a manor, and was in no sense feudal, exer- cised over tenants who did not hold of a particular manor. But this is an historical accident. Legally there was nothing to prevent an honorial court on this side of the English Channel. Nor is proof lacking that such did exist. ^ The Leges Henrici Primi surely contemplate such a court when they tell us that a lord can compel the attendance at his court of a tenant who resides in a remote manor belonging to his Honour. About a century later, the Petition of the Barons in 1258- takes for granted a threefold gradation of courts — those of the proximus capitalis doininus feodi, the superior capitalis doinmus, and the alter superior. But it is true that in England such a gradation of courts was rare, so rare perhaps that the lawyers could afford to ignore it. The reason for their rarity is to be found in the all-pervading character of the royal courts. By means of Pleas of the Crown, of the monopolization of question about freehold through the use of writs, of the actions of assize and, more definitelyHjy the legislative limitation both of appeals from a lord to an overlord TrTihe Provisions of Westminster (1259)," and of the competence of local courts by the interpretation of the Statute of Gloucester (1278),' the feudal courts were left practically at the mercy of the royal judges. T- It is, then, substantially true to say that in England there was no classification as in France, of haute, moyenne or basse justice, and no gradation of courts to stop the application of the remedies of a growing Common law. Nor, probably, was there at first any classification of rights. An immense variety of franchises or grades of rights and powers were exercised by the private courts ; but these were at first the result of gradual accumulation, they were used in the ArnilNISTRATION OF JUSTICE 343 mass, and little thought was given to the titles by which they were acquired or held. Some differences, however, were gradu- ally established. Thus, the rights already described under the name of sake and soke, and in Latin as Halimote or Hallmoot,' that is, the right to a libera curia — not a court of i _5-_ q jq^ freeholders, as is usually supposed, but one which is the lord's ix. 4. own — were contrasted with powers which fell under the head of Regaliar Of these the most important was View of Frank- ^ Select pledge. But this too was exercised by private lords, until xvi^Uxx they were brought to an explanation of their claims by the issue of Edward Fs ^Vrit Quo Warra^ito. The investigations ^^' ' under this writ established the doctrine that the only possible warrant for the exercise of the Regalia was an express royal grant ; in order to prevent the landowners from being deprived of powers which they had exercised ever since they held their lands, the king conceded in 1290 that continuous possession of a franchise from any date before the coronation of Richard I should be considered sufficient answer to the inquiry Quo Warranto. This distinction was emphasized in the gradual separation of the manorial court into a Court Leet and a Court Baron. The Court Leet was, as the lawyers assert, a police court exercising royal franchises as a court of record ; but it did not exist as a separate court until ' the stringent quo-warranto-ing,' which began in the reign of Edward I, gradually brought out a distinction between the strictly manorial and the royal franchises. The Court Baron was a civil court and not a court of record. The explanation of the lawyers — that it was the C^iria baronum or court of the freeholders — has two fatal flaws. In the first place, no such expression is known to occur in a description of the court, and moreover there is no evidence that freeholders as such were ever styled barones. A similar process of gradual separation can be traced in Distinction the purely manorial franchises. The hallmoot or lord's bf'^ween r J ... Court court was attended by freemen and villans alike. Often Baron the freeholders by themselves would have been too few to ^"^^ Court form a court ; for, although there are even a few cases of ^^ ""^^''y- manors without any freeholders at all, there are many in which the number could be counted on the fingers of one hand. Again, in the rolls of the manorial courts no dis- tinction is made between cases affecting freemen and those 344 ENGLISH CONSTITUTIONAL HISTORY in which villans are concerned ; while, since even the villans \\d,^ judicium pariuin or the right of trial by their equals, they would probably have scarcely objected to a jury formed by those who, though fellow members of the manorial court, were their social superiors. But the introduction of the new pro- cedure with its important accompaniment of a jury of recogni- tion, drew out the distinction between the free and villan tenants. The lord's courts eagerly adopted the new procedure, but with this difference in its application — that, while they could force their villans to take the oath required from Recognitors, the free tenants were in the matter beyond their reach. Thus for the trial of villans' claims even as against the lord there could be, as in the king's courts, a judge and jury which could administer the ' custom of the manor ' ; but the freeholders could appeal to the royal courts, and their claims were pro- tected not only by the judgement of their fellows, but by the law of the land. There followed a gradual separation of the court dealing with the freemen, the Court Baron (whatever the derivation of the term), from the Court Customary which took cognizance of the affairs of all tenants less than free- holders. Summary. We may summarize the history of the manorial courts as follows : — a lord starting with the grants of ' sake and soke,' gradually accumulated and discharged by means of the same court, a variety of powers. But in time there grew up a dis- tinction, on the one side, between those powers which he exercised as representative of the king and those which in feudal theory were regarded as inherent in his position of lord of a manor ; on the other side, between the mediatorial power which the lord exercised in connection with his free tenants and the judicial authority wielded over his villans. Thus the one original court fell into three courts, and the lawyers introduced and elaborated all kinds of principles which had no existence in the thirteenth century. The municipal courts will be dealt with more fitly under the head of local government. § 50. But these three separate kinds of courts — national, manorial and municipal — represented the application of three several kinds of custom. If this custom was to be harmonized and consolidated into law, it needed the steady, persistent ADMINISTRATION OF JUSTICE 345 action and the regulative force of one set of universally recognized tribunals. Thus it came about that these various local courts were superseded by the action of courts and judges whose power emanated from the king and that 'the concentration of justice in the king's court, the evolution of Common law were but one process.' ' The reason for this ' Maiilaml, supersession of the local courts is to be found in the superior ^'^fl^^jf^^^, justice administered by the royal courts. This may be iHus- introd. 5. ' trated from a detailed study of the three following points — the Cf- also introduction of a new method of procedure by the use of writs ^p-„„iand and of trial by jury : the regulative influence of the Itinerant i. 277. Justices ; and the protection afforded by the establishment of the three Courts of Common law at Westminster. In ancient law there was little or no distinction between Classifica- crime and tort or civil wrong;. It did not matter whether the t'°n o^ offender had slain his fellow or removed his neighbour's land- mark. In either case the community as such assumed the same attitude towards him. He had committed a breach of the peace or mutual understanding on which the civil life of the tribe was based. If he comm.itted the worst crimes he was regarded as having put himself outside the common peace and as an outknv to whom no mercy should be shown. Or in some cases it became the business of the family of the injured man to exact the vengeance in a hlood-feud which would last for successive generations. For lesser faults the offender could generally atone by a money paymefit, and thus buy back the peace which he had broken. Such crimes were bot-worthy or emend- able, as opposed to botless crimes which exposed the offender to outlawry or the blood-feud and, later, to actual punishments - Cf. Jenks, But it must be remembered that the machinery for imprison- ^f^''^' '°°' ment was of the very roughest kind : the only perfectly safe punishment for any criminal was death, and here the Church interfered to secure for the sinner as long a time as possible for repentance. Nevertheless in England, under the great kings of the West-Saxon' line, the laws were concerned rather with the punishment than with the emendation of offences, until the disorder produced by the Danish invasions and the position of the Danish kings enabled the Church to use an effectual influence in legislation. Thus by the time of the Norman Conquest outlawry was still the punishment for some of the 346 KNGLISII C(J>XSTITUTIONAL HISTORY worst crimes; the blood feud which may never have existed in Anglo-Saxon law, had disappeared chiefly owing to the exertions of King Eadmund, and by far the greater number of offences had a pecuniary mulct attached to them. In fact there gradually grew up an elaborate tariff regulating the price to be paid according to the offence and the station in life of both victim and offender ; and the knowledge of this must have formed no small part of the legal education of the time. Nor was this all : the compositions to be paid consisted of two distinct parts — the bot which went to the injured party or, if a life had been taken, in the shape of wergild to his relatives or his lord ; and the 'ivite which was paid to the king as the representative of the community whose peace had been broken ' Cf by ;the offender's act.^ Finally, to raise to a maximum the io''-To8 • unworkableness of the whole system, a considerable variation 197-9. from district to district is found between the offences severally regarded as bot-worthy and botless, and no modern code will give us the clue as to the category in which any particular crime will be found. The result was that the old system became so cumbrous as to be unworkable : besides the wer and wite all kinds of other payments might be incurred by an offender — to the lord of the injured man, to the owner of the house or the manorial jurisdiction within which the offence had been committed. A payment under such a number of different heads became so large that only rich men could afford to pay. The whole system became intolerable as well as unworkable, and at the beginning of the twelfth century -P. and M. \i seems to have suddenly disappeared.- In its place there 11- 447-400- ^j-Qgg ^ system in which outlawry was nothing more than a piece of judicial procedure to secure the presence of the 2 Ibid. defendant ; a few crimes marked off as felonies * placed the life 463-5- of the offender at the king's mercy, while other offences, both •• Jbid. 510. civil and criminal, which were technically known as trespasses^ and represented the later misdemeanours, were emended by * Jlnd. money penalties at the discretion of the judge ^ in place of the g wites, and by damages'^ assessed by a tribunal instead of C21.3.' the bots. Methods of Such being the classification of offences we are in a position judicial to understand the methods of judicial procedure by which procedure, ^uj^pected offenders were put to the test. The leading charac- ADMINISTRATION OF JUSTICE 347 teristic of all early judicial procedure is the close attention paid to compliance with set forms of action and speech. The business of a court of justice was not to judge — that is, to weigh the merits of the case — but to see that the proper forms were duly observed ; and the trial consisted of an attempt on the part of one of the litigants to fulfil the form prescribed by the court. Thus by a kind of method which we have come to associate with a work of Mr. Lewis Carroll, the judgement preceded the trial. It would, therefore, be more correct to speak not of a trial but oi proof , and to say that the judgement of the court determined the mode of proof and which of the parties to the suit should be subjected to it.^ Thus the earliest i P. ami M. modes of proof were one-sided, and it was often a matter of "• 59o- considerable importance to a litigant that the proof should or Deveiop- should not be awarded to him rather than to his adversary, fient of since some prescribed forms would be easy and others difficult '^'^ '-^ to fulfil. As a matter of practice the proof was generally allotted to the defendant ; but there were means by which the plaintiff could sometimes obtain it, when it was to his advantage to do so." The various stages in the procedure were as follows. - P. and M. The two parties to a suit appeared before the court. The ii- 599-6oo. [)laintiff made his charge in set phrase, any mistake or omission in which would cause the loss of his suit. This had to be accompanied either by a foreoath, i.e. a confirmatory oath on his own part ; by the production of witnesses to the facts which he alleged, though at this stage they were neither put on oath nor examined ; or finally, by the exhibition of the injury of which he complained. The defendant answered also in set phrase, and at first contented himself with a merely formal denial of the charge which at a later date was technically called a ' Thwertutnay,' a downright No." If the proper s /bid. formulae had so far been complied with, the court pronounced 602-606. a judgement, that is, allotted the proof. Of this there were two modes, both appeals to the supernatural. The first was the various forms of the well-known (a) Ordeal. The earliest mention of the Ordeal in England is at the end of the ninth century, and its somewhat benighted appearance, together with the fact that the later formulae used in connection with it are copied from I'Yankish sources, has led to the conjecture that the Church managed for some time to keep outside the recog- 348 ENGLISH CONSTITUTIONAL HISTORY nized law a mode of proof which came so directly from heathen sources. Later, however, she adopted certain forms of it, and invested them as far as possible with a Christian air. The chief forms used in England were the ordeal of water, in which the accused was thrown bound into the water and considered guilty if he did not sink ; and the ordeal of fire, in which he was required to walk over or to handle bars of red-hot iron, and the mark of the iron after three days' interval ^ r. and M. was held to prove his guilt.^ The second mode of proof con- ii. 596-7. sisted of ip) Oaths of various kinds. In very rare instances the man himself would be put on his oath, and in the later laws witnesses who had been solemnly taken to witness at the time of the occurrence, would be required to swear to a set formula. But by far the most usual mode of this kind was the Oath of Oath-helpers, who at a much later date and by a term ' borrowed by legal antiquarians from ecclesiastical sources,' came to be called 'Compurgators.' These would probably at first be kinsmen who might have an interest in the suit which would involve a blood-feud : but they ultimately became mere ' witnesses to character ' chosen sometimes from among persons designated by the court or the opponent, some- times simply from neighbours. They swore merely to their belief in the truth of the oath already taken by the party for whom they appeared. The number which he had to produce was determined by the court, but there seems some evidence in favour of a normal number of twelve. Until the establish- ment of the jury this was by far the most popular form of "Ibid. proof, and came to be known familiarly as 'Wager of law.' - 598-9. jt ^,^g Qj^g (jj. other of these modes of proof that the court allotted to one or other of the parties to the suit. The Ordeal would be reserved for serious charges ; the oath of oath-helpers would be the mode in ordinary cases ; while in a few special instances the matter would be left to sworn first-hand witnesses. Finally, the judgement of the court in the matter of the proof to be allotted, was followed by the Wager — that is, the party to whom the proof was awarded gave security that he would fulfil this judgement or ' make this law.' Then if he failed in the allotted test, either at ordeal or by the non-production of the necessary number of oath-helpers or witnesses, he would at (Jiice be punished as a perjurer. Such [iunishincnt would ADMINISTRATION OF JUSTICE 349 generally consist of confiscalion of goods or, for the more serious offences, forfeiture of life. §51. These modes of procedure long survived the Norman Chanties Conquest. The Normans had practically no written law of"^J"^"^"^' their own, nor was there much that they could borrow from n^ade by their neighbours. In many ways they had not reached, in their the Nor- development of methods of government, any further stage than "^^'^s. had been attained by the race which they came to rule. But if they were not originators, they were among the most assimila- tive people whom the civilized world has seen. Thus they accepted, probably because they were already used to, the greater part of the old English law, and we are told that a careful study of the history of the eleventh and early twelfth centuries would incline a reader to doubt 'whether in the sphere of law the Conquest is going to produce any very large permanent changes. ' ^ Some additions, however, it did make, > P. andM. the importance of which it would be impossible to underrate. ^- 57- But this was mostly a work of time, and it is perhaps impossible to determine how much of the resulting changes was due to direct Norman initiative, and how much to a combination of circumstances, many of which had nothing to do with the fact that the Normans had conquered England. The first of these additions which demand our notice was (i) Intro- a new method of judicial procedure, the absence of which, ^"^'jT "^ however, from the Anglo-Saxon courts, says Dr. Stubbs, ' is far Battle, more curious than its introduction from abroad. ' - This is the 2 s. C. H. trial by battle (duellum), which was only the Ordeal in another § 99- form, but a bilateral ordeal. It could be used in criminal and civil cases alike. In criminal c\\z.rge?> it only applied to the class of cases described as felony. The term felony was originally used to denote crimes which consisted of a breach of what may be called the feudal bond ; but, perhaps because a con- viction for felony caused the felon's land to escheat to the lord, it was to the advantage of the magnates to extend the meaning of the word ; so that in the course of the twelfth century it came to include all crimes for which no bot or money compensation could be paid.^ In the course of another century some seven « p. and M. or eight definite crimes came under this head ; ■* but since both i- 2S4-6. omissions and inclusions were different to those of modern law, ■^^'"^^- ^• it is only possible to define the felony of the twelfth and 350 ENGLISH CONSTITUTIONAL HISTORY ] P- y his own body. The defendant had to accept the offer, and the court awarded 'wager of battle.' In civil suits— the chief of which in mediaeval times were suits about land — the demandant, as he was called, offered battle by the body of a champion who was in theory a witness to the seisin of the land in question, but in practice a professional pugilist hired for the occasion. The duel took place at the appointed time before the judges, and was fought with well-defined and not very deadly weapons. The burden of proving the charge lay upon the appellant and the demandant respectively ; and the case went against them if before nightfall the appellant or the champion of the demandant had not made their adversary cry ' that odious word ' — craven — which so far deprived the vanquished of his civil rights that as an infamous person he could never again appear as a witness in a suit. The convicted felon of course was hanged ; but the defeated appellant or demandant alike, as perjurers, were heavily fined. But the English were tenacious of their old methods of proof: a trial by battle at first found no favour in their eyes. Freedom from it was among the ])rivi- " S- C. leges sought by the chartered boroughs,- and it may have been this dislike which led Henry II to extend the method of inquest and assize. William I in introducing it had made its acceptance ^ Ibid. optional by an English defendant ; ^ but its unpopularity wore 84 §6. away, and by the end of Henry II's reign it had become one of the chief modes of trial in the king's courts. Despite the penalties attached to the use of a professional, schools of hired pugilists existed, and many of the local courts kept in their pay a champion who would represent them in the numerous claims which might arise in the course of litigation. But the duellum gave way before the universal adoption of the system of trial by jury; although it remained as a legal mode of procedure revived from time to time, until the use to which it was put in 108 ADMINISTRATION OK JUSTICE 35 I the celebrated case ol Ashford w Thornton in iStq, caused its 59 r,co. III. abolition by Statute.' f- 4^.- „, , , , ,. . , . -^ ' iNeilson, The other noteworthy additions made t)y direct ISorman -jyiai by influence to English judicial procedure were more than mere Combat. additions ; for they were the means of working an entire revolution ^^^^J^ ■' ° op. ctt. in the old pre-Conquest methods. The first of these was such 39-46. an extension of the use of writs that practically the Normans (2) Exten- may be said to have introduced them. Before the Conquest, ^j^^ ^^^^ ^^^ except in cases of appeal and the trial of Pleas of the Crown, Writs, the king rarely interfered with the local courts. And even after the Conquest, in the desire to preserve the ancient con- stitution, the Crown was content to leave to the local courts the power of first instance or preliminary trial. The original writs, therefore, had no connection whatever with the relief that was sought; they were merely a general direction, from the royal court to do right to the plaintiff. But as the king's authority became recognized, a writ came to be the only appropriate commencement of a civil action at law, and, until late in the reign of Henry II, a particular writ to suit each case was framed in the Chancellor's ofiice and, on demand, was issued therefrom to the sheriff. When the case was decided, the sheriff's duty was to return the writ with the judgement t endorsed upon it ; this was registered by the Chancellor's/ clerks, and the collection of such writs formed one mainj foundation of the Common law in civil cases. These clerks\ who furnished the appropriate writ to a plaintiff, w^ere called Masters. They were ecclesiastics and doctors of civil law, that is, the old Roman law. They would consequently resort to the principles of Roman law to fill defects in the EngHsh Common law. But the tendency was towards a definition of the Common law. Thus, while in the earlier thirteenth century the king's power to make new writs was unquestioned, 'as the struggle for Parliament drew near and Henry III forced on the struggle by attempting, to govern without a Chancellor and other ministers, the complaints of new and illegal writs grew loud, and the general principle was drawn into debate.'- In the firsi - Maitland, place, the Provisions of Oxford made the Chancellor swean -^^'"'^''''^''-^ ' Ke il ne enselera nul bref fors bref de curs sanz le commande- introd. 6.' ment le rei e de sun cunseil,' that he would seal no writs excepting ' writs of course ' without the commandment of the king and 352 ENGLISH CONSTITUTIONAL HISTORY I S. C. 389. - Ibid. 301, §40. ^ Maitland, Bractorfs Note Book. Trial ( by Jury. •* Movie, Jiistiuian^ 594: 653. Its origin. of his council.' These brefs de curs, brevia de cursu, or ' of course,' were writs framed to meet ordinary cases of continual recurrence, and despite Magna Carta- (nuUi vendemus . . . justiciam), the}' could be purchased by an intending plaintiff. It was to these writs that no addition could now be made without consent of the king and council. But, secondly, the action of the judges made it almost impossible for the Chan- cellor's clerks to innovate in the forms of writs ; for, the judges assumed the right of deciding on the validity of the writs on which actions before them must be founded. An attempt to remedy this was made in the Statute of Westminster II, § 24, which allowed the issue of writs '■ cotisimili casu,'' that is, in like case, falling under 'like law' to one already in existence. But the judges so completely ignored this power of the clerks that "Tienceforth the Common law was dammed and forced to flow in unnatural artificial channels. Thus was closed the cycle of 1 original writs, the catalogue of forms of action to which nought but Statute could make addition.' ^ ^^'e have seen the formal nature of early procedure — the statement in set phrase of the plaintiff's case, the denial in equally set phrase of the defendant which came to be known as the ' Thwertutnay.' Nor did this formal part of the defendant's answer disappear from the pleadings ; but in course of time and as the science of pleading became elaborated, it was thrust into the background, and the real answer was contained in an adaptation of the Exceptio of Roman law. This is defined as 'a plea of a countervailing right,' ■^ that is, the defendant does not deny the plaintiff's statement, but argues that special cir- cumstances which he proceeds to mention, do away with its applicability in this particular case. But the introduction of the exception practically amounted to a destruction of the old simple method of procedure ; and it only assumed importance in connection with the second great innovation in legal pro- cedure which we owe directly to the Normans — the use and spread of the system of trial by jury. The origin of the jury has been a matter of much speculation. Dr. Stubbs enumerates some nine or ten different theories, of which the only common principle seems to be the use of an oath in judicial procedure. Dr. Stubbs himself favours the view that the system was derived directly from the capitularies or charters declaratory ADMINISTRATION OF JUSTICE 353 of law issued by the kings of the Franks, who in their turn may have adopted it from the code identified with the name of the Emperor Theodosius. The first use of the jury was a. d. 435-8. for cases in which the royal interests were concerned. The inissi or itinerant officials of the monarchs of the house of Charlemagne were instructed to inquire into fiscal and judicial matters in the district courts by the aid of sworn witnesses representing the evidence of the neighbourhood. The system was continued in France, where, however, it was not developed and was soon forgotten ; and in Normandy, where also it retained a comparatively primitive form. In both these countries, though used primarily for royal or ducal purposes, permission was by special favour obtained for its adaptation to the concerns of Churches and even of private persons. The system was introduced into England at the Norman The Conquest, and only in England was it much developed. It ' ^^-'^'2^- had no connection with the doomsmen or suitors of a local court whose business was 'to make a judgement,' that is, to declare the customary law ; nor with the oath-helpers who swore to a set formula ; nor with the frankpledge which was a permanent institution ; much less, probably, with the twelve senior thegns about whom we know so little. But throughout the Norman period it remained an exceptional mode of pro- cedure. It was thus that in 1086 Domesday was compiled from information supplied chiefly by the priest, reeve and six villans of each vill.^ There are also a few instances ' ■$■. C. 86. under all the Norman kings of the use of this method in judicial cases, but always as a matter of royal favour where the rights of private individuals, or especially of monasteries, were concerned.- These were all regarded as acts of the '- Thayer, shire court : the method of selecting the jurors is not clearly 5o-53- laid down ; but in all probability they were chosen by the sheriff, perhaps by rotation from a list or according to their nearness to the place or their presumed acquaintance with the business to be done. Already under Henry I some of the characteristic difficulties of the system are apparent. There is a body of judices and juratores which, if merely synonymous terms, are at any rate to be distinguished from the minuti homines who were also obliged to attend the local courts. Again, the numerous fines recorded in the earliest 2 A '1/ V-M/V 354 ENGLISH CONSTITUTIONAL HISTORY extant Pipe Roll (31 Henry I), 'pro defectu recognitionis,' show that there was great reluctance to attend the courts and con- sequently a scarcity of qualified jurors. It is to Henry H that we must look for the establishment of that inquest by recogni- tion as part of the settled law of the land, which finally resulted in the modern form of trial by jury. But for the present we must not speak of a jury (jurata). Hitherto the process in which this sworn body of neighbours was employed, had been an Inguisitio, an inquiry. Now that its use was becoming common, stress was laid rather upon the work of the sworn men, and the process was described as Recognitio, the answer. But the word that was most often used in this connection, was the very confusing word Assize. It denoted at least three things — an assembly, the ordinance of such an assembly and, Y what is most important in tracing the development of the jury, ^ a particular remedial method of. judicial procedure. For, the neighbours summoned to take part in the inquiry, themselves 1 S. C. came to be called the Assize.^ 57-59- A clear appreciation of Henry H's remedies by Assize depends upon an exact knowledge of the meaning of a word which we have had frequent occasion to use without precise 2 P. atid M. definition — the word Seisin? Now, seisin, as we have seen, 11. 29-79. nieans possession, and in English law it is contrasted with * jus ' or right. It did not always follow that the man in possession of a tenement was the man who ought to be there. But further, it must be pointed out (though it seems a virtual con- tradiction of our definition) that all ownership was practically possessory. The law never attempted to decide ownership as against all the world ; it only decided between the two litigants in court, of whom the successful one might subsequently be ousted by a better claimant. Finally, as the law developed, rights took a concrete shape; they came to be regarded as incorporeal things not essentially different from so corporeal a thing as land. The term ' seisin ' was applied to the right to services from land, no less than to the land itself; and the same legal actions as availed for recovering possession of a tenement, could be used by owners who were denied the services due from that tenement. Armed with this knowledge we shall not misunderstand the ordinary division of these means for the ascertainment of ADMINISTRATION OF JUSTICE 355 lights of possession or remedies for the deprivation of them, into (i) proprietary and (2) possessory actions. (i) Proprietary actions} Hitherto any question regarding 1 /^. az/oTil/. the right to ownership of land held by any free tenure, would "• ^'^• have been begun in the lord's court and was decided by battle. But Henry H made it a principle that no man need answer for his free tenement, that is, that no freeholder's tenure should be called in question, without a royal writ directing an inquiry into his title. A claimant, therefore, or demandant, as he was technically called, had to obtain from the king's court, as represented probably by the Chancellor, one of the original or originating writs known as the Writ of Right (breve de recto tenendo). This would bid the lord of the tenement, on pain of removal of the matter into the king's court, to do him right, that is, to secure him in possession of the disputed tenement. Armed with this writ the demandant appeared in the manorial court, claimed the land as his right and inheritance because he or some ancestor was seised of right, and offered battle by the body of a champion who was in theory a witness to the original seisin. The man in possession, called the tenant, would deny the claim and either accept battle or put himself on the Grand Assize. If he chose the latter alternative, the demandant would have to get an auxiliary writ bidding the lord choose four knights of the shire, who should in turn choose twelve knights of the neighbourhood in which the disputed tenement lay. These would be required to answer before some of the king's judges whether from their own personal knowledge the demandant had a better claim than the tenant ; and according to their verdict the land in dispute would be adjudged to one party and his heirs and abjudged for ever from the other party and his heirs. But it was probably more usual to remove the case straight away into the king's court. This would be done by another writ — 'Praecipe quod reddat'- — and the duty of summoning the assize would devolve upon the sheriff. The indiscriminate use of this last writ was naturally much disliked by the holders of private courts, and Magna Carta- attempts to stop its ap-2^. c. 301, plicability to them. Meanwhile, however, other circumstances § 34- had determined that the remedial measures begun by a writ of right should practically fall into abeyance. For, this mode 356 ENGLISH CONSTITUTIONAL HISTORY 1 Maitland, Introd. to Rolls of the Ki tig's Court, Richard I (Pipe Roll Society) : P. and AT. i. 123-7 ; ii. 46-62. - S. C. §9. I39i " Iliid. 151, §4- of procedure was not regarded with favour even by the class whom it was designed to aid. In the first place, it was a very tedious process. A man was not lightly to be abjudged from a free tenement. Thus all kinds of precautionary measures were permissible, which in the hands of unscrupulous men became mere means of delay. The choice of the assize might be a lengthy proceeding ; for, the members chosen by the sheriff might be challenged on all kinds of grounds, and were able themselves to urge all manner of excuses for non-attendance ; while in his answer to the demandant's claim the tenant was allowed to plead exceptions. Nor was this the tenant's only advantage ; for in the mode of procedure the choice was open to him between trial by battle and by assize. As a remedy Henry II instituted, perhaps by degrees, a more summary method of procedure to be adopted in certain cases, which are generally distinguished as the petty or possessory assizes. (2) Possessory actions} The advantage of this new method was that it could always be applied to a new case with royal per- mission ; but as a matter of fact it was only established in a few cases ; and of these, four especially may be enumerated as those in common use. {a) The Assize Utrum was an attempt to limit by confirming the claims of the ecclesiastical courts in dealing with land held by the Church. The Constitutions of Clarendon -^ direct that the preliminary determination ivhether a disputed tenement is held by lay or elemosynary tenure is to be in the hands of the king's justiciar inquiring through the sworn evidence of the neighbourhood. The narrowing down of the definition of elemosynary tenure soon deprived this assize of much meaning. Far more important was the Assize of {b) Novel disseisin. This was established by the Assize of Clarendon and was used to determine whether, since some recent date mentioned in the originating writ, the holder of a certain tenement, here called the defendant, had unjustly and without judgement, that is, without legal proceedings, disseised or dispossessed the plaintiff of his free tenement. Scarcely less important was the Assize of {c) Mort d'ancestor which was established by the Assize of Northampton"' in order to determine whether since some definite date the person whose heir the plaintiff claimed to be, died seised as of fee, that is, holding the land by a title which, if good, would ADMINISTRATION OK JUSTICE 35/ descend Lo his heir. Finally, in litigation about advowsons or the right of presenting to an ecclesiastical benefice, there already existed a special proprietary action begun in the king's court by writ of right of advowson. Here also Henry instituted a possessory action, the Assize of (d) Darrein presentment, by which a sworn committee of neighbours was used to ascertain who made the presentation on the last occasion, so that he or his lawful heir should present now. All these possessory assizes had certain features in common. In the first place, their mode of procedure was summary. They were not taken into the lord's court at all, but began at once before the king's judges. In accordance with the original writ the sheriff himself summoned the twelve men to form the assize ; they need be not knights, but merely freeholders, for the matter to be decided was not so important as in the Grand Assize ; while, finally, not nearly the same number of grounds for challenging the members nor excuses for their non-attendance were allowed as in the Grand Assize. And, secondly, this method of procedure by assize lays so much stress on the necessity of a legal remedy for wrong-doing, that it seems to us almost to defeat its own end, namely, the accomplishment of justice. For in a case of Novel disseisin self-help, or the forcible ejection of the intruder, might only be attempted within four days of his intrusion, although in Mort d'ancestor the limit was longer in order to allow the news of the ancestor's death to reach an absent heir. But at the end of these periods the man in possession obtained a lawful seisin, and could defend himself by a writ of novel disseisin against even the lawful heir, whose only remedy then was to obtain a writ of right and to submit himself to the tedious process of the Grand Assize. But before the actual assize had been appointed for a The proprietary action or had been sworn under a possessory ' Assize ' action, in course of time a very important act was often \^ interposed, with which is intimately bound up the develop- ment of the jury. To the claim of the demandant in a proprietary action and of the plaintiff in a possessory action the tenant and defendant respectively might reply by pleading an ' exceptio,' a sj)ecial plea or reason why the assize should not be held ; and he might offer to submit this plea to a jury or, as the [)hrase was, to a verdict of the country. The other 358 ENGLISH CONSTITUTIONAL HISTORY party, on pain of losing the case, would be bound to accept the offer. As a matter of fact, this question which had arisen out of the pleadings, would probably be submitted to the twelve men summoned for the assize ; but it is important to notice that the assize and the jury represented a different idea. The assize originated in a royal writ, the juiy-in the cojiaent qfjhe^arties : the assize wa s'sQmTrroned. beforathe-defendant's case was heard, the jury were summoned to ansiier a q uestio n of fact which it had been agreed to submit to them. The Jurors In theory, then, it was only by mutual consent of both parties as Wit- that a jury was employed : but the judges seem to have found means of compelling an unwilling suitor to submit to the test. And as the old Thwertutnay of the defendant became a mere form and the real point at issue was contained in the ex- ception, the assize gave way entirely to the jury. Now, the early jury, no less than the assize which they superseded, were required to answer from their own personal knowledge. But '^ P. and M. it has been pointed out' that it is not quite true to say in the 11. 019-020. ygyg^j phrase that the ' jurors were witnesses ' ; for if their ' veredictum ' had once become * testimonium,' the judges would have treated them like modern witnesses, they would have been dealt with separately and the court would have discussed the divergent testimony of the twelve. But apparently, in direct opposition to the theory of their functions, the jury, as distinct from the assize, very soon seem to have been expected, when summoned, to make inquiries about the facts to which they had to testify, ' to collect testimony . . . 2 Ibid. 622. weigh it and to state the net result in a verdict.' - Moreover, for some purposes from the very first, actual witnesses (e.g. to a deed) were mingled with the jury in their deliberations, although generally it was only the jury who testified in open court : while, as further aids, charters and documents were exhibited to the jury, witnesses were occasionally examined before them, the judge charged them at the beginning of the trial in order to keep them to the point in their verdict, and then the counsel on either side addressed them in perfectly ^ Iliid. unsupported statements of fact.^ But from the middle of the „^5- • ^ fourteenth century witnesses and jury began to be sharply chap, ii'i, separated off, and unanimity on the part of the jury was passim. required ; while in the fifteenth century witnesses began to ADMINISTRATION OF JUSTICE 359 testify in open court. For a long time, however, the old idea of testimony from personal knowledge hung about the jury. ' A man,' says Professor Maitland, speaking of the end of the Middle Ages, 'who had been summoned as a juror, and who sought to escape on the ground that he already knew something of the facts in question, would be told that he had given a very good reason for his being placed in the jury-bo:^.'/' Thus as ' Maitland, late as 1543 we find a statute requiring six out of the twelve '" ■^"'""'^ jurors to be inhabitants of the particular hundred concerned, i_ 291. ' it being intended that these should inform the others. "" •_> Thayer Meanwhile the method of ascertaining royal rights by the 90 et seq. evidence of the neighbourhood had been adapted to the The Jury purposes of criminal justice. The system of frankpledge men^t^^^" had already set up a number of small mutually responsible bodies under the eye of the sheriff. It is perhaps not un- likely that to Henry II occurred the brilliant idea of turning the already existing machinery for ' producing one's neighbour to answer accusations ' into a machinery for ' telling tales against him.' 2 In other words, the same court held by the 3 ]y[aitiand, sheriff twice a year through the hundreds and consequently Introd. to called his Tourn, was used both to take View of Frankpledge ^^J^^^ ^^^ and to receive presentments of suspected criminals. We can Manorial only notice the earliest recorded instances of the application Courts, li. of a jury of presentment. The sixth article of the Constitutions of Clarendon'* seems an attempt on the part of Henry II to •» s. C. check the arbitrary judgements of ecclesiastical courts upon 138-9- laymen by a provision for the appointment of a kind of jury consisting of neighbours of the accused empannelled by the sheriff, on whose presentment the ecclesiastical judge is allowed to act. Nothing further is heard of the jury in ecclesiastical courts. On the other hand, the first clause, practically the preamble, of the Assize of Clarendon •'^ provides that twelve s /^^/j/. 143. men of each hundred and four of each vill shall swear that 1166. they will answer truly whether any man is reputed to have been guilty of murder, robbery or suchlike heinous oiifence. Ten years later the Assize of Northampton*^ extended the s /^/^. 151. subjects about which inquiry should be made, and directed 11 76. that such inquiry should be carried out both by the judges and by the sheriffs, that is, in the judicial eyres or circuits and in the local court which came to be called the Sheriffs Tourn. 36o ENGLISH CONSTITUTIONAL HISTORY Procedure before the itinerant Jvistices. ' Pleas of Cfowii for Coiinly of Gloucester, Introd. xxiii-xliv. P. and M. ii. 641-652. The develop- ment of the Petty Jury. The composition and procedure of this latter court will be described elsewhere. A session of the justices in eyre was only an enlarged edition of the sheriffs tourn. There were assembled before the judges all officials of the shire, the hundreds and the liberties, and all who were bound by their tenure to do suit at the shire court ; together with twelve men representing each hundred, and chosen by two or four knights who had been nominated by the bailiff of the hundred; and, finally, the reeve and four men from each vill. These representative members of hundred and vill were all sworn to speak the truth, and then a set of questions, known as the Articles of the Eyre and drawn up by the king's councillors, was delivered to them in writing to be answered by a certain day. But, meanwhile, they privately handed in their list of suspects whose escape could thereby be prevented by an order of arrest from the judges. On the appointed day the juries of the hundreds appeared with such of the presentments of the vills in writing as they ' avowed ' or endorsed. But the judges further questioned them orally and compared their answers with the written .statement which they had just handed in and with the rolls of the sheriffs and coroners on which were recorded the presentments of the tourns and inquests. For any inconsistency of statement the jury was amerced, and since some of the statements to which they had to swear might date from the last eyre — an interval of perhaps seven years — such amercement was frequent. In fact, the procedure degenerated into an extortionate absurdity. But, in any case, the chief business of the eyre seems to have been to amerce through the jury the communities which they represented, and which on the confessions of their representative jury had neglected their police duties by failing to present or to arrest suspected criminals.' So far the procedure continued fairly uniform from generation to generation. It was only the graver crimes — the felonies^— about which the juries seem to have been called upon to witness before the judges. But in the procedure after the presentments had been made, early in the thirteenth century a great change has to be noted. At first the judges, having received the presentments of the jurors of thr hundreds, would put on oath ADMINISTRATION OK JUSTICE 361 the representatives of the four vills nearest to the one of which each presented suspect was an inhabitant ; and in each case in which they endorsed the presentments of the man's own vill and of his hundred, the accused proceeded to the ordeal. But in 121 5 the Fourth Lateran Council practically abolished the ordeal by forbidding the clergy to take part in it, and owing to the peculiar relations of England with the Pope at the beginning of Henry Ill's reign, the decree took effect sooner in England than in any country of Western Europe. The only procedure now at hand was the procedure which was developing itself out of the assize, namely, a resort to the verdict of the country by a specially empannelled jury. But'^we have seen thai sub- i-gission to the verdict of a jury was purely optional, a matter ofjjiutual agreement between the two parties to a suit. Con- sequently the^accused might not put himself upon the country ; aiidijn tjieir lack of any other procedure, the judges resorted to /j^alMcinds of expedients in order to force him to submit. Atlast 'A^e Statute of Westminster r-^{§ 12) ordained that notorious 1275. fe'lbns who refused, should be kept 'en la prison forte et dure' (in strong and hard prison) as refusing the common law of the land. ) This led to the development of the barbarous /^/V/f'/^'r/^ et dure ^ by which a recalcitrant was gradually starved or crushed ' Thayer, \>yji load of iron into submission or death. The point of such 74-8o. obstinate resistance was that an unconvicted criminal saved for his family the land which, on his conviction for felony, would have escheated to the lord or, if his offence was treason, would have been forfeit to the king. But if the accused did put himself upon the country, the jury of the hundred which had hitherto only presented him as suspect, were now asked to pronounce definitely on the question of his guilt. It would not be unreasonable for them to acquit him, for their present- ment was only made on common rumour and might well have been made in order to save themselves from an amercemerlt if the rumour reached the judges from elsewhere. But if they found him guilty, the representatives of the four neighbouring vills were again put on oath, and sometimes to them was added the jury of another hundred. If the verdict of these numerous unconnected bodies was unanimous the prisoner was sentenced. Thus the jury to which his fate was submitted might number as many as forty-four persons ; and, since there is seldom 362 ENGLISH CONSTITUTIONAL HISTORY any record of difference of opinion among them, it has been supposed that the unanimity was somewhat fictitious, and that trial by jury was trial by common repute. The further development of trial by jury is more important in the history of our law than in that of our constitution, nor as yet can we at all clearly trace the steps which ultimately led to the modern system of indictment by grand jury and trial by petty jury. All that we can say for certain is that, in the first place, there arose a not unnatural idea that a man's indictors would not try him impartially, and a statute of 1352 forbade them to try him at all ; then, the disuse of the presenting jury for the further trial involved the disuse of the four neigh- bouring vills which had corroborated their evidence ; and finally, the elaborate character of the old judges' eyres was altered, and the indictment of the sheriff's tourn and the inquests of coroners became sufficient to put a man upon his trial without any further presentment by the hundred jurors. Survival of But notwithstanding the universal establishment of the jury old methods system, all the old methods of procedure died hard. Certainly, cedure. ^^^ local courts of hundred and shire never assimilated trial by jury and, for this reason among others, decayed with the decay of compurgation and ordeal. But compurgation was not abolished by statute until 1333, and trial by battle only disappeared in 181 9. Even the 'peine forte et dure' remained a legal method until 1772. The difificulties and dangers which beset the jury in its development towards its modern form, will be dealt with in speaking of the violations of the liberty of the subject in comparatively modern times. There remains to be noticed shortly another early use to which Henry II and his immediate successors put the sworn representatives of hundred and vill, namely, as a committee of assessment for fi7ia)icial purposes. The Jury of So long as taxation was based exclusively upon land, the assessment, witness of Domesday might be a sufficient guard against undue exactions. But when merchandise, moveables, or personal property were called on to contribute to the Exchequer, an owner's liabilities were not so easy to determine. In the first instance the payer's own return would be accepted ; but in cases of doubt or dispute recourse was had to the evidence of his neighbours as to his probable expenditure ; and this could ADMINISTRATION OF JUSTICE 363 be judged from the standard of life which he maintained. This method was appHed on the first occasion indirectly, in order to determine the weapons which under the Assize of Arms (1181) every freeman was to keep at hand.^ Its first ^ '5'. C. 155. direct use was for the Saladin Tithe, a tenth part of every one's rents and moveables, that is, income whether derived from land or merchandise, which was voted for the Third Crusade.'^ '•^ Ibid. 160. The success of the system led to its application in 1198 to determine the liabilities of land,'^ and thus to an assessment •'■ I/>id. 257. which should supersede the now antiquated record of Domes- day. But the use of these juries of assessment is intimately connected with the history of representation, and the gradual formation of Parliament entirely did away with their employ- ment for this purpose. § 52. But neither writs nor jury would have been of much The importance or avail without the constant, regulative action of Itinerant the Itinerant Justices. The great weakness of the early English , ' constitution was that want of intimate connection between the central and the local government which effectually prevented all concerted action. The greater kings were aware of this fatal defect and took measures to remedy it. Thus ^-Elfred, Their perhaps in imitation of the ' missi ' of the Karolingian Empire, ongm. investigated cases of injustice through ' fideles ' or royal mes- sengers : while for the same purpose Eadgar and Cnut held the Witan thrice a year at stated times and places, an example which was imitated by the first two Norman kings. But this was not enough. The enormously increased activity of the central government after the Norman Conquest caused the formula- tion of an elaborate financial system. After 1086 Domesday Beginning became the authority on which all landed property was rated; of the but changes in the ownership of land, the formation of new ^^'^ ^'"' forests and the cultivation of waste land made it necessary constantly to modify the previous assessment of any individual owner. Under William II such questions were referred to the shire court. But the sheriffs themselves required supervision. For this purpose Henry I sent through the country officials of the Under newly-formed Exchequer, who should assess the revenue, and H^"'T ^• take the exclusive cognizance at any rate of the pleas of the crown out of the sheriffs hands. Not content with that, in some cases he even seems to have appointed resident justices 364 ENGLISH CONSTITUTIONAL HISTORY superior to the sheriff for hearing such pleas. But as yet the system was most inefficient. The sheriffs themselves were much too powerful to be interfered with. Their posts were in many cases hereditary and tended to fall into the hands of a few great men, each administering a large cluster of shires. Moreover, the visits of the new officials were extremely irregular and were concerned rather with financial than with judicial business ; while, finally, the private jurisdictions of the ' .S". C. H. great feudal lords were left intact.^ §127. jvJqj. f-Qj. |.j^g ^j.g|- tyyeive years of Henry II's reign (1154- 1 166) is there proof of the beginning of a better system. After the disorders of the late reign Henry moved tentatively along Formula- the path of reform. From 11 56 at intervals of two or three svs" m ' ^ years the great officials. Justiciar, Chancellor and Constable, under held pleas alone or together in most of the shires. But the Henry II. circumstances of Henry's quarrel with Becket gave an impulse 1 166. to popular reform, and from the date of the Assize of Claren- don (i) the visits of royal officials to the provinces became frequent and, before long, regular. The Assize of Clarendon was carried out by two of the king's ministers assisted by the sheriffs; in 1168 and again in 11 70 four barons of the Ex- chequer held pleas in various shires : while in 11 73 the prin- ciple of circuits was introduced, and in 11 76 the Assize of Northampton was carried out by three judges in each of six circuits into which the country was divided, some of whom were at the same time sheriffs and barons of the Exchequer. But this combination of offices was coming to be unusual. The sheriffs of Henry's early years were great local magnates holding pairs of shires, apparently for life, and both oppressing the people and hindering the work of the king's judges. But in 1 170 the complaints of their conduct encouraged Henry to issue a strong commission of inquiry composed of barons and of clergy not already occupied in administrative work. The Inquest of Sheriffs resulted in (2) the dismissal of a large number of the acting sheriffs, in whose place were .substituted trained officials drawn from the same class as the justices ; although as a rule care was taken to place the two offices in the hands of different individuals. Moreover, (3) the judicial aspect of the journeys of these royal officials into the provinces gradually assumed more importance and ])roniinence than the ADMINISTRATION OF JUSTICE 365 financial aspect ; and this change would no doubt be aided by the introduction of the taxation of personal property, which transferred the details of assessment to sworn representatives of each district. And finally, (4) by the Assizes of Clarendon and Northampton all judicial and administrative power was being gathered up into the hands of the king's representatives ; for by the former ^ no private franchise was to exclude the 1 s. C. 144, sheriff, and by the latter the pleas of the crown were prac- § "• tically taken out of the hands of the sheriff whose local interests were too strong, and were entrusted entirely to the justices to whom the sheriffs should act henceforth as police officers and subordinate administrative officials. But, meanwhile, Henry's various measures of reform had The growth .rapidly increased the amount of judicial business which had of a body to be done in the king's name. The intermittent and some- ? ?™' , what indefinite Curia Regis, of which in theory all the itinerant judges. justices were members, no longer sufficed for the purpose. There was need of some more permanent arrangement ; and permanence in administrative work brings with it the oppor- tunity for professional training and the cultivation of a pro- fessional pride. To attain this permanence Henry seems to have tried a series of experiments, until in 11 78 he chose two clerks and three laymen out of the eighteen persons acting as itinerant justices at the time, and appointed them to remain at the king's court as a kind of permanent nucleus of a central judicial body; although the king and his councillors were still to exercise an equitable jurisdiction in the last resort."-^ How little of the professional stamp as yet hung "^ p. a?7d Af. about the king's judicial officials is clear from the fact that i- i33- the rest of the eighteen do not seem to have gone on acting as judges, but probably resumed subordinate places in the Exchequer; while, for a long time to come, with the pro- fessional judges on their circuits were associated knights of the shire — country gentlemen who were occupied in numerous - branches of local administrative work. In fact the itinerant justices were not necessarily members of the central Curia at all, and could be summoned before it to bear record of their acts ; but each body of justices would usually include one or two professional judges. In any case they went as the king's representatives, and their court was everywhere Curia Regis, 366 ENGLISH CONSTITUTIONAL HISTORY 1 P. aiidM. i- 134-5- Their com- missions. 2 Ibid. 179-180. Cf. also Select Pleas of Crown, Introd. xxi, Their con- solidation. 1 176. 3.S. C. 151-2. * Pnd. 259-261. ^ Pleas of Crown for County of Gloucester, Introd. xxi though their authority was probably defined by the words of a temporary commission.^ The chief of these judicial commissions were : — (a) that of the Peace. This was the oldest and most important, and was the primary duty of the royal judges ; but with the increase of order in the country it was given over entirely to inferior magistrates of the first instance or primary resort, whose history will be traced under the head of Justices of the Peace. Com- missions {b) of Gaol Delivery were preliminary investigations to prevent the oppressions of local magnates, and were gene- rally made over to local commissioners. Those {c) of Oyer and Terminer were for the purpose of hearing and deter- mining criminal cases, such as treason, felony and trespass. {d) For taking the Assize large numbers of commissions were issued annually, and were heard by a professional judge who could choose his own local assessors. Finally, (c) Nisi prius was not issued as a special commission until the Statute of Westminster II in 1285. It was intended to relieve the pressure of the commissions for the assize. Two justices, with the aid of one or two knights of the shire, were to take all assizes thrice a year at Westminster, and the juries em- pannelled for such cases were to be sent up to Westminster unless, before the day fixed for trial by the judges there, the itinerant justices had come into the county." The history of the jury is paralleled in that of the itinerant justices. Under Edward I those commissions which still remained in the hands of the justices, were gradually amalga- mated. Already, in the early days of the system, there had been some attempts in that direction. Thus by the Assize of Northampton, criminal and civil actions, superintendence of the procedure of a criminal jury, together with more mis- cellaneous duties, were given to one and the same set of commissioners;^ while in 11 94 to the commissioners were given not only civil and criminal cases, but also the collection of tallages and all crown dues.'^ These, however, were iso- lated instances. More permanently, though at considerable and irregular intervals, such as five to seven years, a circuit for all pleas would be instituted in the shires. For each shire two or three of the professional judges were commissioned together with a prelate, baron or knight of the shire. ^ Under Edward I ADMINISTRATION OF JUSTICE 367 this method became permanent. Thus, in 1293 the kingdom was divided into four circuits with two judges to each, who should take the assizes and should be on duty throughout the year. Their power did not cease with the special temporary commission. The ordinance of 1299 was a step further in the same direction ; for it enjoined that justices of assize, if laymen, should also act as justices of gaol delivery. § 53. But while the king's commissioners were travelling The thiee round the country, there were gradually beinc; or2;anized three t-ouiis of , 11, -n , ^ 1 Common central courts through whose mriuence the Common law was l^^^, reduced to one uniform system prevailing over all local and class peculiarities, so that in its turn it might be a bulwark against the encroachments of the Crown. We have seen that in 1 1 78 out of the eighteen acting itinerant judges, Henry II selected five to be continually with him. According to f/ie usual theory^ the members of this court were changed from „ • time to time, but were all chosen from the officials of the Exchequer : the business which came before them was that which at a later date was referred to the three Courts of Com- mon law, that is, either ' placita quae sequuntur regem,' criminal or civil cases which touched the king's rights and revenue, or 'communia placita,' cases of private litigation in which the king intervened as supreme arbiter and judge. From this court difficult cases were referred to the King in his Council," and - S. C. i97- such cases included questions of revenue as well as legal ^'^J^^S"^ '' , ^ c. S, and matters of a more general nature. 1^2, § 7. But the position of this body of judges was extremely vague, and probably this theory should be largely qualified. A recent writer^ has produced evidence to show that these five judges :> pike, 31. who were appointed to be permanently at the king's court for the sake of hearing ' all the claims and plaints of the people,' were the origin not, as is generally supposed, of the later Court of King's Bench, but of the later Court of Common Pleas which, in accordance with a provision of Magna Carta, became fixed at Westminster, It seems difficult, however, to identify this professional judicial committee with either of these later Courts of Common law. For some time after 1 178, what has been aptly called the ' dualism ' of the king's court, must be regarded as more or less of an accident. Thus, during the absence of Richard I the distinction between the 368 ENGLISH CONSTITUTIONAL HISTORY '■ Maitland, Select Pleas of Crown ^ Introd. xvi-xvii. Court of Common Pleas. 1194-1198. 1234. five judges and the general body of the king's councillors altogether disappeared. Under John the dualism reappeared ; for we find not only that a certain number of judges were sitting in banco at Westminster, while others were hearing pleas ' coram rege ' wherever the king happened to be ; but that even when the king was at Westminster, the two bodies of judges did not necessarily coalesce. Moreover, suitors would be summoned either before the justices of the bench sitting at Westminster or 'before us wheresoever we shall be in England.' But as yet all judicial arrangements were so entirely subservient to the king's will that two courts cannot be said to have existed. For, either body was competent to hear alike common pleas and pleas of the crown ; the two sets of judges at any time might and sometimes did coalesce, while individual judges were not permanently assigned to one or other division. Thus it may be said that ' the king's court of John's reign 'shows no cleft, though it does show a well-marked line of cleavage.'^ Magna Carta (§ 17) said that common pleas should not follow the king but be heard in a fixed place ; and this clause was repeated in the reissues of 1216 and 121 7. This meant that some permanent tribunal should be appointed in a definite place to which private litigants could bring their cases with some assurance of finding judges to hear them. But for the present the injunction was needless. For during Henry Ill's , minority the dualism disappeared, and there was only one I judicial body of the justices of the bench sitting at Westminster I to hear all kinds of cases and supervised by the Council of ' Regency. Then, when Henry came of age, in imitation of / his predecessors he began to make progresses and to do justice in person with the aid of his judges and members of his Council. But in 1234 a very definite step in organization may be marked. It was probably during the last years of Henry II that the pleas heard in the king's court began to be enrolled ; and from the justiciarship of Archbishop Hubert Walter it became a frequent, though not as yet a regular practice. Now, on the dismissal of Stephen Segrave, Hubert de Burgh's successor in the justiciarship, no justiciar was appointed and, instead of all the pleas heard before the king's judges being entered on one set of ' de banco ' rolls, those heard by the Select ADMINISTRATION OF JUSTICE 369 judges with the king, the ' placita quae sequuntur regem,' were entered on separate ' coram rege ' rolls. Thenceforth there were two distinct sets of plea rolls, those of the bench being drawn up terminally, those of the cases heard ' coram rege ' annually as if uninfluenced by legal terms. Each body had also a different process to compel the attendance of suitors. The justices of the bench wanted little more to turn them into the more modern Court of Common Pleas: 'out] this did not happen until the reign of Edward I, Pleas of when the judges of the court obtained a permanent organi- '\^ Crown. zation under a Chief Justice of their own, and they were ^^^^ Book. no longer allowed to hear pleas of the crown in any /'. and M. shape.^ •• 177-179. Meanwhile, the old Exchequer had completely changed its Court of form. At first, with its membership of all the great officers Exchequer, of State, it was merely ' a phase of the general governing body of the realm.' But it gradually tended to become ' partly a judicial tribunal, partly a financial bureau.' Early in Henry Ill's reign the Justiciar and Chancellor ceased ordinarily to attend, and the Treasurer became president of the court ; I while its seal was put in the keeping of a new, special Chan- cellor of the Exchequer, and men were definitely appointed to be barons of the Exchequer, that is, as permanent officials of the court. Its chief work was to collect the king's revenue ; but it was empowered by the king and council to redress the grievances of any petitioner against the action of the Crown. As yet, however, it was not regarded as a law court ; for if a question of general law was involved in any matter that came before its officers, they were told to associate with themselves the king's judges for the purpose of deciding it. But the barons of the Exchequer had devised certain summary methods of procedure for the collection of money due to the Crown. It was probably the desire of suitors to avail them- selves of these methods that encouraged the barons to enter- tain what were really common pleas. This was checked by a clause in the Articuli super Cartas in 1300; but as a kind of compensation we find that a Chief Baron was appointed, and suitors were sometimes expressly allowed to go to the Exchequer in order that they might have the benefit of those summary processes. As a consequence, the Exchequer was more and 2 B 370 ENGLISH CONSTITUTIONAL HISTORY 1 r. andM. i. 169-172. Court, of King's Bench. 1 - Maitland, Introd. Memo- randa de Parlia- mento. Court of lOxchcfjuer Chamber. more confined to the work of a court of law standing side by side with the Court of Common Pleas.' There remained the court held ' coram rege,' which before very long ceased to imply the necessary presence of the king. But, for some time after 1234, its work continued to be indistinguishable from that of the King's Council itself, and it thus possessed a jurisdiction in error over the Common Bench, which it retained even when formed into a separate court. For before the end of Henry Ill's reign the ordinary work ' coram rege ' seems to have been done by a committee of professional judges under a definitely appointed Chief Justice ; and, while the Common Bench continued to remain the Bench in an especial sense, under Edward I, to this committee there began to be applied in distinction the term King's Bench. But as yet it was not a separate body ; for at any moment the committee could be afforced by the presence of the king and any or all of his councillors, ecclesiastical or lay ; nor was there any distinction in the class of cases which could be heard by the ordinary or by the afforced court. In 1290, how- ever, the afforced court obtained its own rolls, and the cases heard before it, as opposed to the cases heard before the professional committee, were entered on the Parliament Rolls. Then, before long the term Parliament came to be appropriated to the meeting of the three Estates, and the Parliament Rolls became the records of those meetings. Finally, the King in Parliament when acting as a law court, came to be the House of Lords ; the King in Council became a court of final equitable appeal and also a court of first instance in extraordinary cases, keeping no roll or record of its pleas or cases.- Thus out of the old Curia Regis on its judicial side there had been evolved (i) three Courts of Common law— 7King's Bench, Conmion Bench or, as it was afterwards called. Com- mon Pleas, and Exchequer ; and (2) two supreme courts — the House of Lords and the King in Council. The distinction between the authority of these last two courts will be noticed elsewhere. Here it is important to follow out the creation in the sixteenth century of an intermediate court of error between the Courts of Common law and the House of Lords. This centres round the later history of the Court of Exchequer. The barons, most tenacious of their privileges. ADMINISTRATION OF JUSTICE 37 1 claimed the right of amending all errors in their judgements in the Exchequer itself, and, consequently, unlike the Common Pleas, successfully evaded the claims of the King's Bench to hear such cases. This, however, would not have been altogether satisfactory, and in 1357a statutable court was created, composed 31 I^clw. of the Chancellor and Treasurer who should associate with them ■ ^'^'" '' cap. 12. the justices and other learned persons for the purpose of hear- ing appeals in error against the decisions of the barons of the Exchequer. More than two centuries later this court, which came to be known as the Exchequer Chamber, was adapted to 1585. the purposes of an intermediate court of error between the King's Bench and the House of Lords, by which could be avoided the delays incidental to the existence of a court of final appeal whose sessions depended on the political needs of the sovereign.' But it was only as a Court of Common ' Pike, law that the Exchequer was amenable to the intermediate 292-4- court. Apparently under the Tudors, in imitation of Chancery, it developed a jurisdiction in Equity, and in many kinds of cases it exercised an equitable jurisdiction concurrent with that of Chancery until all such jurisdiction, except in so far as it was concerned with matters of revenue, was transferred to Chancery by statute in 1841. Meanwhile, like Chancery itself the Exchequer on its equitable side was amenable to the correc- tion of its errors by the House of Lords. § 54. Before passing on to the results of the concentration Forest of justice in the royal courts, it is necessary to deal shortly Courts, with a class of prerogative courts through whose agency the royal power must have been widely spread. The Forest Courts were a creation of the Conquest. A forest was not necessarily a waste place, nor did it always belong to the king : on the contrary, it was generally private property and was often a j j ■ u thickly populated.- The basis of the royal claim upon the The Kiiiifs forests is difficult to determine, especially as none was recog- Peace. nized either by the law or by the owners of property. The Historical struggle between king and nation over the extension of the Maps. area of the forests lasted for more than two centuries. The 1066- 1300. general course of it was as follows. William I afforested or made the New Forest. Henry I, by consent of his barons, kept the forests which his father had made;^ and Stephen surrendered Henry I's additions.'* By Magna Carta John "^Tb'id. 120. S. C. loi, § 10. 372 ENGLISH CONSTITUTIONAL HISTORY ^ S. C. 297, surrendered all which he himself had added ;^ while Henry III § 4- surrendered all additions made since the accession of Richard I, - Hid. 348, and submitted to a perambulation which should determine the ^ ^" boundaries." The limitation of the forests was the last point 1300. upon which Edward I gave way ; but, by the Articuli super Cartas, he was obliged to submit to a restraint similar to that * /did. 446 ; which had been placed upon his father.^ Realm ^^"^ ^ dwellers within this expansive forest area there were i. 136. a special law and a special set of courts. The earliest y^/'^j/ * S. C. 74, law is one attributed to Cnut/ which is merely a confirmation § 8i. of the rights of landowners. The first code of forest laws is the Assize of Woodstock drawn up under Henry H, and s Ihd. recording the severities of his grandfather.^ By it, the forest jurisdiction was extended (§ 9) over the clergy by connivance of the papal legate, and (§ 11) over the whole population of the shires at the summons of the Master Forester. Richard 1 went even further ; for he demanded that the whole population should come as a matter of course before the itinerant justices fi Ibid. 258 ; of the forest.*^ This, however, was withdrawn by Magna Carta R. ^°^"^"^ (§ 44), which also provided (§ 48) for the abolition through 7 ^' r\o2 i^'x^usst by jury of all evil customs of the forest." The result of this provision was that Henry Hi's ministers issued a separate 8 Ibid. Charter of the Forest,^ in which the punishments decreed against 348-35'- offenders were much milder than those of Henry IFs Assize. Thus, while in the Assize (§ 12) for a third offence an offender forfeited freedom or life, by the Charter (§ 10) no one should lose life or limb. Again, whereas the Assize (§§ 3, 7) restricted the rights of private owners within their own forests, the Charter (§§ 9, 12, 13) promised to these same owners a confirmation of their rights. This law was applied by a set of courts which were parallel to those of the hundred and shire. The lowest of these was (i) the Court of Attachment or Woodmote, held every forty days by the Verderers to receive the presentment of suspected offenders who had been attached or arrested by the Foresters or Constables. (2) The Court of Swainmote was held thrice a year under the presidency of the Verderers. Here attended all the officers of the forest together with the reeve and four men from each vill within the forest, to receive indictments and to form juries of inquest. The Swainmote convicted ADMINISTRATION OF JUSTICE 373 or acquitted on local knowledge ; but judgement was reserved for (3) the Court oS. Justice Seat, a supreme court of civil and criminal jurisdiction, held every three years or when the king issued a commission for the purpose. This court determined all suits whether arising from claims of civil rights or the presentment of criminals ; and, in preparation for it, there was held a Regard or visitation of the forests by Regarders or Inspectors. Thus the officials of the forests formed a regular hierarchy. At the head came a Master Forester, independent even of the Justiciar himself. The Justices in eyre or circuit of the forests tried the presentments of the Verderers, of whom four were chosen, like the coroners, in each county court. By this means a large portion of the country must have been withdrawn alike from the action of the Common law and from the influence of private lords. The best parallel is to be found in the prerogative courts of Tudor and Stuart times, which are said to have dominated as much as a third of the whole country. § 55. So far we have been dealing wath the reasons which Results of led to the gradual concentration of justice in the royal courts, concentra- It is necessary now to consider the results of this most im- ■,^^^\^q ;„ portant change. They may be grouped under the three King's i following heads — (i) the decay of the local courts; (2) the ^°"'^'^^- \ y, change of the Common law to a written law ; and (3) the rise ] of the jurisdiction of Chancery. It is usually asserted that the Conquest made no difference con- in the constituent elements of the local courts. We have stituent already seen that the earliest evidence for their composition — "?^"? ^"^f a passage in the Leges Henrici Primi — points to the presence courts, of only a limited number of suitors in these courts. Corrobora- tive evidence to the same effect may be afforded by another somewhat mysterious passage in this document which tells us that the king's judices are the barones of the county, whereas the villani and others of lesser rank were not to be reckoned among the number.^ Moreover, under Henry I, 1 s. C. from elsewhere we get a distinction between the judices and ^°^' ^^'^• Juratores, and the miniiti homines.- Finally, the sworn com- 2 pjpg RoH, mittee of neighbours who developed into the jury, are always 3i tl'^n. I, spoken of as legales Jwmines, as if to mark them off from other men. Such hints as these might make us hesitate before we 374 ENGLISH CONSTITUTIONAL HISTORY accepted the usual account of the exhaustively re])resentative character of the local courts. But the cartularies of manors in the thirteenth century and the Hundred Rolls drawn up in 1279 seem to afford overwhelming evidence that the suitors at the local courts must have been a very limited body. Thus, on nearly every manor are noted tenements whose holders ' defend ' their lands by attendance at the local courts, that is, the suit to the local courts is mentioned in the same list with the various personal duties and payments which constituted the rent by which the tenant held his land. This method of representation in the local courts may have originated in the collective liability of the vill to which the passage already quoted from the Leges Henrici Primi may bear witness ; and it may owe its existence in point of time to the revival of the local courts by Henry I when, it has been thought, that ' the duty was conceived as being incumbent ... on all freeholders who or whose overlords had no chartered or prescriptive immunity ; but that it was also conceived as being, like the taxes of the times, a burden on the land held by those ^ Maitland freeholders.' ^ Whatever the origin, the result seems perfectly in E. H. R. (,[gj^j._ Each local court, whether county, hundred, or even ill. 420- 1. . manorial, is entitled to a fixed number of ' suits,' the number of which could not lawfully be increased by subdivision of the holdings or in any other way. The question as to who should actually discharge the due suit, would be a matter for a bargain between lord and tenant ; but when once fixed it would tend always to be incumbent on the holder of a particular tenement. So carefully is the requisite suit provided for that certain tenants are bound in respect of their holdings to attend regularly at every or at each alternate meeting of the monthly or three- weekly shire court, certain others at the half-yearly court of the shire or of the sheriff's tourn, and others even at the specially '^ P. and M'. full court Convened to meet the justices in eyre.- The result i- 526-531. was that the local courts, though not large in number of suitors, were composed of very miscellaneous elements ; for, the persons on whom the duty was laid might be drawn from any class of freeholders. It may be for this reason that men were able to regard the local courts as representative assemblies and to 2 Ibid. speak of them as being the counties and hundreds." But 534- even this small number of suitors to the local courts was ADMINISTRATION OF JUSTICE 375 further reduced by the legislation and the practice of the thirteenth century. For on the one side the Statute of Merton 1236. allowed every baron to appear by proxy ; and the Statute of Marlborough exempted from the sheriff's tourn all above the 1267. degree of knight unless they were specially summoned ; while the grant of the privilege of their own View of Frankpledge removed the boroughs from the same assembly. Again, it was perhaps the burden of the work and the danger of corruption that led to the limitation of the jurors for assizes to freeholders, Stat. West, first, of twenty shillings, and then, of forty shillings annual value. ^^\^' ^\r On the other side, some landowners, chiefly religious bodies, c. -•. gained exemption from attendance at the local courts for them- selves and their tenants ; while others succeeded in ' subtracting ' or withholding their suit, a practice which after a time xno.dQ ^ p. a>id M. such abstention into a prescriptive right.' i- 523- Together with this denudation of the local courts went Decline of a diminution ofthe power of the sheriff. This may be dated the shenfi's from Henry II's great Inquest of Sheriffs in 11 70, and may be traced in the four departments of the sheriffs work. Thus, (i) his military authority was lessened when scutage practically did away with the levy of the minor tenants-in-chief; while the Assize of Arms in 1181 placed in the hands of the justices the duty of superintending the armainents of the local fyrd.^'^-^. C 155, Under Henry III, chief constables were appointed for every ^ji^" hundred, and a petty constable for each vill,'' who generally ■'• ihid. 372. combined the duties with that of bailiff or reeve. Finally, by the Statute of Winchester view of armour was to be held by two 1285. constables in every hundred and franchise, and defaulters should be presented to the sheriff.'* Yet the sheriff's power was not * //'/V/. 471 altogether destroyed. Until the appointment of a Lord Lieu- § ^''" tenant under the Tudors, he remained the local leader of the shire forces. Those of the lesser barons, too, who did not pay scutage, were mustered under him : and even the greater barons occasionally were entrusted to him rather than to the Constable and the Marshall who usually convened them. A remnant of the sheriff's military authority appears in his later duty of ' pricking ' for Commissions of Array. As (2) a yW/V/'a/ officer, the sheriff was gradually deprived of all his more important work. In the first place, (a) special officials were appointed, to whom were allotted duties which naturally would have fallen to the sheriff. 376 ENGLISH CONSTITUTIONAL HISTORY Such were the Coroners, who, by the judicial, instructions of 1 194, were to be elected by the people to Wep the pleas ^ S. C. 260, of the crown and generally to look after royal interests.^ § 20. Under Edward I they were specially charged with the holding of inquests in cases of unusual death ; but for some reason they were probably found inadequate, for their duties did not develop. Such, again, were Justices of Trail Baston instituted under Edward I and occasionally appointed in later times, who were a kind of Court Martial for disorderly periods and districts; but on account of their summary methods of procedure they met with much opposition. A third kind of such officials were the Conservatores Pads, of whom as Justices of the Peace much will ne^ to be said in another connexion. But (/-') the sheriff was actually and by direct legislation deprived of portions of his power. Thus, the directions issued for the Judicial Iter of 1 194 laid down that no sheriff should be justice in his own - Ibid. 260, country ; - while Magna Carta forbade the sheriff to hold pleas .§21- of the crown. ^ Again, (c) the sheriff was made amenable to § 24. "^ ' tl"^6 Itinerant Justices. For, while the Assize of Clarendon equally charged the sheriff and the justices wdth the work of •^ Ibid. 143, receiving presentments from hundred and vill,** by the Assize f y of Northampton this duty was committed to the justices alone.^ 151-2. Similarly, at first the sheriff had a hand in the appointment of Juries of Assize ; but by the directions of 11 94 the jury to act ^ Ibid. 259. on the eyre was to be chosen by the shire court. "^ Yet the sheriff retained some traces of his former position. Thus, for a long while the tourn continued to be held to receive present- ments and to conduct preliminary examinations of persons charged with crimes. Having ceased to be judges, the sheriffs remained presidents of a number of small local courts which could accuse, although they could not try. This power, how- I Edw. IV. ever, was used for purposes of extortion, and a law of Edward IV '^- ^- deprived them of it. There remained to them merely the duties of arresting suspects and of exacting penalties adjudged by the courts. As (3) a police officer, the sheriff's power received an irreparable blow from the lapse of the View of Frankpledge, which robbed his tourn of its most characteristic duty ; and from the appointment of constables in the hundreds and vills. He was, however, the person to whom royal writs, such as those for distraint of knighthood, continued to l)e addressed ; ADMINISTRATION OF JUSTICE 377 and to him were prisoners entrusted until the coming of the Itinerant Justices. Lastly, his (4) ^nana'a/ duties also threatened to disappear ; for, first the assessment of taxes, and then their collection, were made over to special commissioners ; while the charters of boroughs removed them in many points from the sheriffs control. But the sheriff could not be altogether dispensed with. He still raised the farm of the shire and collected the tallage of unchartered towns : he was concerned with purveyance, and for some time helped the special com- missioners in the collection of the taxes. Thus, though deposed from the supreme place which he had occupied before 11 70, the sheriff still retained numerous shreds of his ancient powers. Indeed, his continued importance is attested by the struggle over his appointment in the contests of the thirteenth century, and by the influence which he exercised in the two following centuries over the election of m,embers to Parliament. While the courts were thus dwindling in the number of Decline their suitors, and while the sheriff was being docked of one ^°'^' ,- ' , ° petence ot piece of authority after another, the actual competence of the the local courts themselves was gradually reduced. The extension of courts. pleas of the crown and their transference from the sheriffs to the coroners and then to the Itinerant Justices, was only the natural corollary to the organization of the judicial body. But the employment of writs, followed by the remedy of the assize, gradually made the king's court a court of first instance for all England, and practically withdrew from the private courts all valuable jurisdiction over freeholders. The courts, however_^/^ continued to exist. .But in 1278 the Statute of Gloucester was 6 Edw. I. interpreted to mean that no action for more than forty shillings ^' could be tried in a local court. This limitation of competences'; told alike on the national and feudal courts ; and, while theu part taken by the shire courts in the election of parliamentary representatives gave them a new lease of life, the feudal courts entirely disappeared, leaving only the manorial court with jurisdiction over customary tenants. The second great result of the supremacy of the royal courts I'ixing of was a strong impetus towards the fixing of the form of the ,^0^ 1°^"^" Common law. Up to the time of Edward I the Common law was definitely an unwritten law ; and, although it never entirely ceased to be so, yet it was tending to take a settled form. The 378 ENGLISH CONSTITUTIONAL HISTORY causes of this important change were— (a) the establisliment of Parliament as the one proper organ of legislation, which (prevented the unauthorized development of procedure by the issue of new writs ; {/>) the establishment of a series of precedents by judicial decisions which were considered to have I an authority binding on succeeding judges almost equally with ^ acts of the legislature. To these may be added (c) the growth , of a class of professional lawyers, as is proved by the publica- I tion of such authoritative law-books as those associated with the names of Glanvill, Bracton, ' Fleta ' and Britton ; and (d) the formulation of the Courts of Common law. The Common law of England may thus be said to consist of three elements: — (i) Zex ?wn scripta or custotnary law. Such customs date from remote antiquity ' whereof the memory of man runneth not to the contrary,' and, in order to obtain recognition, they must have existed continuously. A second element is formed by the (2) Lex scripta or statute law, in which the duty of interpretation devolves on the judges who are guided by various recognised rules or canons of con- struction. To these may be added (3) iJiaxims draivn from approved legal authorities. In deciding a case for which no precedent could be quoted, the judges at first would listen to arguments drawn from Roman law. This put into the t hands of the common-law judges a power of innovation and expansion. But in the reign of Richard II they refused to allow such pleadings for the future ; and with the banishment of Roman law from the courts this power ceased, until competi- tion with Chancery caused the common lawyers once more to adopt those principles by whose application Chancery had thriven. Chancery. § 56. In sharp contrast to the methods and sources of the Common law stands the legal system of the Chancery, which owes its power to the deliberate refusal of the common lawyers to meet the growing needs of a developing society by measures for the continuous development of their procedure. Early The Chancellor first appears in England under Eadward the history of Confessor. He was the chief secretary, head of the king's cdlor ^" chaplains and keeper of the royal seal. The name was derived from the cancelli or screen behind which he worked. Owing to the literary qualifications of the office, in early days it was ADMINISTRATION Ol' JUSTICE 379 always in the hands of an ecclesiastic' It was not until the ' .S". C. H. abolition of the justiciarship that the Chancellor became the § '2'- great political official which he remained until the days of the Tudor sovereigns. But, meanwhile, his legal position was considerable ; for he was the head of the office from which were issued the writs through whose operation the royal justice overrode the private jurisdictions.^ From the time of Edward I J'^"!^^' the advance of the Chancellor's power was continuous until (a) under Edward IIF tHe" Chancery was established as a separate court ; (/3) under Edward IV it became a separate jurisdiction; (y) under James I it established its right to heai:^ ' cases on writ of error from the common-law courts, and (S) by the time of Lord Eldon the Chancellor's ' discretion ' had become practically fixed within recorded precedents. The establishment of Chancery is generally ascribed to an Chancery Ordinance of Edward I in 1290 by which petitions were dele- g^p^^^^jg gated to be dealt with by the courts which they concerned, court. Among these mention is made of the Chancellor. But this was probably no novelty. The Chancellor at first exercised his jurisdiction in the King's Council, of which he was the president ; but as yet he had no monopoly in the application of the royal prerogative of grace, much of which was carried out by the king in person.^ Under Edward II the Chancellor ^ Kerly, seems to have begun to sit regularly for judicial business. A "vf"'''. "^ large and important part of this was concerned with petitions \vhose claims affected the royal rights, and this became the chief portion of the Chancellor's common-law jurisdiction. Under Edward III the Chancery was fully established as a separate court with its seat at Westminster. In 1350 all such matters as were of grace, that is, such as involved the exercise of the king's prerogative of grace, were referred to the Chancellor. Thus the Chancery, as a formulated court, exercised two kinds of powers — (i) as a court of ordinary jurisdiction ; for, the king could at his pleasure sue either there or in the common-law courts in any case to which he was a party : (ii) as a distinct court for giving relief in cases which required extraordinary remedies. But two important provisos must be made. In the first place, although petitions now began to be addressed to the Chancellor direct, yet matters of grace did not come exclu- sively to him. A close connection continued between him and 380 ENGLISH CONSTITUTIONAL HISTORY Chancery gets separate jurisdic- tion. 17 Ric. II. c. 6. the Council of which in these matters he seemed to be the official representative andacting committee. Secondly, although Chancery had a procedure of its own, yet it often adopted common-law procedure in matters outside its ordinary juris- diction, and the special procedure in cases falling within it ; while, since the Chancellor never had authority to summon a jury, matters of disputed fact were transferred to be tried in the King's Bench. Thus although the Chancery was a distinct court, the juris- diction of the Chancellor was not as yet a thing enjoyed by himself in his court alone. But the practical settlement of the Common law, for reasons already stated, caused continual failure of redress, especially when the plaintiff was poor and unable to pay the fees for obtaining the original writs. Thus the encouragement came from two sides. On the one hand, itidividuah applied for help to the Chancellor because the special procedure of his court enabled him to give remedies for wrongs w^hich the Common law did not recognize. This procedure consisted of (i) a power, borrowed from the Council, of compelling the attendance of a defendant under penalty, by what was hence called the Writ of Subpoena, and (ii) the power, borrowed from the Canon law, of examining the defendant upon oath. But, on the other hand, the Co?nmo7ts who had begun by complaining strongly of the Chancellor's growing jurisdiction, finding that it could not be extinguished, tried to regulate it. Not only was it recognized by an Act of Richard II's reign as a distinct and permanent court, but Parliament even delegated matters to the Chancellor as the person who should redress wrongs for which the Common law gave no remedy. Two important results followed from this double encouragement. By the enforcement of Uses of which the common-law courts refused to take cognizance, a vast mass of business was attracted to the court, and there was formed and administered in Chancery a distinct code of law^s by which the enjoyment and alienation of property was regulated on principles very different from those of the Common law. Moreover, instead of remaining a kind of acting com- mittee of the Council, by the reign of Edward IV the Chancellor himself conducted the business of his court and formulated its decrees. ADMINISTRATION OF JUSTICE 38 1 But with the estabHshment of the Chancellor's separate Chancery jurisdiction, the Courts of Common law took the place of^"^'^^ Parliament as plaintiffs against the action of Chancery. And l^^^ this on two grounds, (i) In the first place, the common lawyers Courts, joined issue with Chancery on the kind of law which was administered by that court. Now, although high legal opinion can be quoted in sui)port of the view that the Chancellor was guided merely by personal discretion in his judgements ; yet beneath such discretion are to be found two leading principles which, in some degree or other, he made the source of his decisions. The first of these was {a) the Roman law, which included the dictates both of djuity as set forth in the Civil law (especially since the refusal of the common lawyers to allow its efficacy in their courts), and those also of co?iscience, which had been a monopoly of the Canon law until the lay lawyers succeeded in removing from the ecclesiastical courts the cognizance of all such cases where laymen were concerned. Henceforth Council or Chancery alone could hear such cases. To this should be added {b) Precedents, especially after the commencement of the publication of Year Books or reports of adjudicated cases. Of these the first instance in Common law comes from the reign of Edward I ; while the earliest Chancery reports date from Henry V. But it is to the Tudor times and to the development and concentration of the legal functions of the Chancellor that we have to look for the full growth of this force. The changes made in the law of property by the Statutes of Uses (1535-6) and Wills (1540), and the changes made in its possession by the dissolution of the monasteries, rendered necessary the appointment of a regularly trained lawyer to the Chancery. Thus Wolsey's successor was Sir Thomas More. But owing to the ignorance of the Civil law displayed by these non-ecclesiastical Chancellors, precedents assumed such an increasing importance that, under Elizabeth, they began to be authoritatively published ; and the extent of their influence may be measured by the fact that, under Charles I, the Chancellor refused to interfere in a case because there was no precedent to guide him. (2) A much morcserious cause of complaint against Chancery was its desire to supervise the judgements of the Courts of Com- mon law. This it attempted to do by the issue of injunctions 382 ENGLISH CONSTITUTIONAL HISTORY prohibiting plaintiffs from proceeding with actions at common law, or of executions on judgements obtained at common law in cases where the legal claims seemed to be against equity or conscience. So long as the Chancellor was a great political official, the protests of the common lawyers were ineffectual ; but under the Tudors, while the position of the Chancellor was reduced, the Common law was strengthened by the introduc- tion of new remedies in competition with Chancery, and by the abolition (through the Statute of Uses) of much of the Chancellor's early jurisdiction. In James I's reign, therefore, the common lawyers determined to bring matters to an issue. Two notorious swindlers, named GIativi//e and Allen, who had obtained judgement by fraud in the common law-courts, had been punished in Chancery. Chief Justice Coke persuaded the culprits to indict the prosecutors and their counsel for 'praemunire,' because they had called in question a judgement of the King's Court. But, on the appeal of the Chancellor, the king referred the matter to the Attorney-General, Bacon, and other lawyers, who decided in favour of the Chancellor's power. Henceforth, down to the Judicature Act of 1873, recognition was given to the right of the Chancellor to grant injunctions against suits at law and against the enforcements of judgements obtained in the common-law courts. Changes in But the position of Chancery itself from this time underwent Chancery. ^ considerable change. Hitherto there had been no regular appeal against the decisions of the Chancellor. The only course open to suitors was a petition to Parliament or the Crown, 1675. until the case o^ Shirley v. Fagg established the right of such appeal to the House of Lords. At the same time, the friends of the Common law did everything in their power so to amelio- rate the condition of the Common law as to lessen the reasons for the interference of the Chancellor. Two most important results were obtained — (i) owing to the action of two great 1736-1756. Chancellors, Lords Hardwicke and Eldon, the Chancellor's discretion zvas placed withifi defifiable limits. From the time of the latter ' the development of equity was effected ostensibly and, in the great majority of cases, actually by strict deduction from the principles to be discovered in decided cases, and the work of subsequent Chancery judges has been, for the most 1801-1S27. part, confined, as Lord Eldon's was, to tracing out these ADMINISTRATION OV JUSTICE 383 principles into detail and to rationalizing them by repeated review and definition.'^ (2) Owing also to the obstinate ' ^>crly's refusal of Lord Eldon to surrender any branch of equitable /r^" jy^/ jurisdiction, the great improvement in the remedies given 182. by the Common law made the jurisdiction of Chancery no ^i^- .'^'^j" longer supplementary to, but merely concurrent with that of Andent the Courts of Common law. As a consequence, the reform Law, 69. of Chancery procedure in 1833, followed by that of the Com- mon law in 1852 and 1854, ended finally in t/ie fusion of Common law and Eqicity by the first Judicature Act of 1873. The result of this and subsequent supplementary Acts has been to consolidate all the existing superior courts into one Supreme Court of Judicature, consisting of two primary divi- sions — (a) the High Court of Justice consisting of three subdivisions. Chancery; Queen's Bench; Probate, Divorce and Admiralty : {f) the Court of Appeal from the decisions of the judges of each of these subdivisions. CHAPTER VIII POLICE AND LOCAL ADMINISTRATION Early § 57- It is difficult to carry our minds back to a time when System of every one who was not a blood relation, either real or supposed, was an enemy with whom no terms should be kept ; or even to the comparatively late period when the peace or guarantee for order lapsed oh the death of the king from whose sanction it was supposed to emanate, until the election of his successor. This 'peace' has been defined as the primitive alliance for mutual good behaviour, a breach of which ipso facto outlawed ^ S. C. H. the transgressor until he had taken measures to repair it.^ It § 72. seems to have consisted of three grades. For, firstly, there lay upon the land the frith which it was the duty of the local courts of hundred and shire to maintain. Besides this there was the grith or special protection under the guarantee of some powerful individual, such as was obtained by commenda- tion. But even beyond these we find mention of a mimd or personal guardianship, such as a lord would exercise over his household and immediate dependents. According to the close- ness of an individual's relations to the guardians of the peace, the protection which he could rely on would be effective or the reverse. Thus the growth of commendation, which was so prominent a feature of the waning Anglo-Saxon monarchy, would result in the gradual substitution of the royal grith for the old national frith which was too vague to afford adequate security in dangerous times. The old courts and their officials remained ; but the law which they applied would tend to emanate from the king rather than to remain a mere declara- tion of national customs. Hiis transition was not completely effected until after the Norman Conquest : yet in the last century of Anglo-Saxon rule there are sufficient indications of 381 rOLICE AND LOCAL ADMINISTRATION 385 the direction in which things were tending. Thus .^thelstan's laws mention the king's oferhyrnes or a special penalty to be paid for contempt of the royal jurisdiction :' under Eadmund ' S. C. 66, we find an oath of fealty ; - and so great was the desire to ^ ^°' obtain justice at first hand from the Crown, that both Eadgar"^*^^ • 7. and Cnut were obliged to enforce resort in the first instance to the local court. ■' ^ Ibid, ti, These were means of protection for the weak and the inno- '^^P' ^' cent. More than one device was necessary in order to secure cap. 17. the guilty. The first in ])oint of moral force and the least modern in idea, was an attempt to bind men's consciences and Oath for to enlist them on the side of order, by the universal enfoixe- ma.mten- tince 01 the nieiit of an oath for the mainie/iaiicc of peace. Thus Eadmund's peace. Oath of Fealty demands ' ut nemo concelet hoc (i.e. treason- able feelings) in fratre vel proximo suo plus quam in ex- traneo.'-* Cnut desires 'that every man above xii years o\d ^ /bid. 67 ^ make oath that he will neither be a thief nor cognizant of§i- theft.' ^ Nor did this method die out at the Conquest ; for in 5 /^^-^^ ^^^ 1 195 knights are assigned or appointed to exact a similar oath cap. 21. from all above the age of fifteen years.** • « Ibid. 264. Doubtless a more effective way was the promotion of a Suretyship comprehensive system of suretyship and registration. This is and Regis- generally traced through several stages, of which the earliest is the responsibility of the kindred for the behaviour of its members as well as for their protection to the extent of exacting vengeance for injuries inflicted on them. Now, Dr. Stubbs acknowledges that the political importance of the tie of kindred is prehistoric, though he believes that the laws of the Anglo- Saxons contain traces of its original existence." But Professor 7 ^ q ^ Maitland entirely rejects all those theories of the origin of the § 38. family which we associate with the name of Sir Henry Maine or his opponents, as absolutely incompatible with the known facts not only of Anglo-Saxon law but even apparently of («) Re- German custom. The foundation of Sir Henry Maine's theory ^f^Jg'^'''^^ is the origin of the family in the ' patria potestas ' or absolute kindred, power of the father over all his male children, his wife, and his female children until their marriage, when they exchange his ' patria potestas ' for that of the family into which they marry.^ * Ancient Professor Maitland, on the contrary, asserts that ' our earliest '^'"''' '35 notices of the German tribes absolutely debar us from supposing 2 C 386 ENGLISH CONSTITUTIONAL HISTORY that they disregarded the relationship between a child and his mother's brother. So soon,' he continues, * as we get rules about inheritance and blood-feud, the dead man's kinsfolk who must take part in the feud and share in the wergild, consist in part of persons related to him through his father, and in part of ^ F. a/id M. persons related to him through his mother.'^ This is true 11. 238-239. also of England. Thus, in the absence of kin on the father's side, a law of^^^^lfred lays upon the maternal kindred two-thirds' of the wergild — a larger share than would ordinarily fall to - S. C. 63, them for payment.- For in England it is abundantly clear § 27- that, in direct opposition to the idea expressed by the name 'patria potestas,' marriage did not sever the bond between the woman and her kinsmen. In this the Leges Henrici Primi may be regarded as sufficiently indicative of English custom, and several passages show that her blood kinsmen were responsible for a married woman's misdeeds, that they received her wergild, and even that her husband could not remove her away from the neighbourhood of her kinsfolk without giving them security that he would treat her well. In fact, the German and English household was formed by the alliance of two persons who had different 'mtegthe' or kin. Thus every person had two masgthe — that of his father and that of his mother. Both had with him the rights and duties of kindred, though not in equal degree. But the mi^gth existed primarily for purposes of war and blood-feud ; so that on each separate occasion w'hen the law called on it to act, a different masgth would form itself. 'There were,' says Professor Maitland 2 /*. and M. again, ' as many blood-feud groups as there \vere living persons •' ii- 239. or rather existing families of brothers and sisters.' But even more than this ; the rights and duties of the kindred which are found subsisting in Anglo-Saxon times, were individual rights and duties. Thus, directly we meet with mention of a wergild we also find a method of dividing it up among individual men. Even the law of ^Ethelstan, that the kin must find a lord for * S. C. 66, ^ lordless man,"* may just as well be addressed to each and all § 2- of those who would be entitled to his wergild : every one of them would be liable to perform the duty if called upon. We cannot admit the idea of corporate responsibility. For a long while yet the only way in which a community could be legally punished was by seizure of the goods of individual members. rOLICE AND LOCAL ADMIN LSTRATION 387 The outcome of all this is that the majgth or blood-feud group was not a permanently organized unit. Nor, in any practical sense, was it a legal unit. But what then, wc would naturally ask, is to be said about the fairly numerous traces of family rela- tionship which previous writers have noticed in Anglo-Saxon laws ? In answer to this our author will only allow that strong family groups may have formed themselves : that possibly men lived in large groups tilling land by co-operation, and even deem- ing themselves to be kinsmen in blood ; and it may have been with such groups that the law had to reckon.^ But beyond this ' p. and M. there was no other kind of recognition, and such groups had "• 242- to contend against the ancient principle on which the maegth or blood-feud group was founded, l^ut the permanent responsi- bility which, we have seen, did not lie upon the family, was otherwise provided for. In early German law a lord was absolutely responsible for the acts of his slaves, and probably a householder would have to answer for the free inmates of his house. But the lord's free tenants were not so kept in check ; though possibly he might have to produce them in court to meet an accusation. It has been thought that the Anglo- Saxon laws show an attempt on the part of the lords to get rid of this liability. Thus a law of /Ethelstan ^ allows them to i s. C. 66, substitute for such liability the duty of keeping their men in § 7- groups each of which should be jointly responsible for the production of all its members. It may be that in this enact- ment is to be found the much disputed origin of the system of Frankpledge.'^ * P. and M. The Laws of Ii^adward the Confessor speak, in connection "•5^^ , . , , , r • 1 1 • • 1, 1 1 1 ('') Mutual Avith the tenmannetale or inthborg, as it is called elsewhere responsi- in England, of a system of mutual responsibility founded on bility. a division into numerical groups of ten.** But this whole ^ S. C. 77. account may be regarded as utterly apocryphal. The date of the compilation has been placed at about 1130, and it is said to represent 'private work of a bad and untrustworthy kind.'*"* f P- ami M. Apart from this, however, there is plenty of evidence for the '" ^' existence of responsible groups among the Anglo-Saxons. We have already noticed a law of ^thelstan's day, which would affect the rural districts, the estates of great lords. But this may have been preceded by the regulation of similar groups in the few burhs or towns of which the country as yet could boast. ;88 ENGLISH CONSTITUTIONAL HISTORY ' S. C. 67. = Cf. Domesday, 185. 8 S. C. 66, §20. * Ibid. 67, §7- *"' Ibid. 71, cap. 6, 72, cap. 3. ^ /(^/(/. 72, cap. I. ' /'^'■'^- 73> cap. 20. * Z^!*?'^. 105, § vi. I, and 106, § viii. 2. Frank- pledge. " Seled Picas in Manorial Courts, XXX. p. and M. We find mention of gilds in Alfred's day ; and in /Ethelstan's time the document known as the ' Judicia Civitatis Lundonia; ' ^ provides for the division of the inhabitants of London into bodies of ten or twelve who are connected both with frithgilds and with tithings : while a law of ^thelstan provides that any one thrice failing to attend the gemot (possibly the shire moot) - is to pay the ' king's oferhyrnes ' which he has thereby incurred, and is to be put in borh by the chief men of the burh.'' Simi- larly Eadmund provides that all suspects are to be brought ' sub plegio.''* These may be tentative attempts at police super- vision applied to special places and special persons. Under Eadgar, as we might expect, these regulations are given a more general application. Thus, every man ' both within the burhs and without the burhs ' is to have a borh which is ' to bring and hold him to every justice,' and to be responsible for his non-appearance.^ This provision is repeated by ^^i^thelred with a special application to the case of freemen, and with a renewal of the old law that every lord shall be answerable for his own household.^' Finally, Cnut enacts that every freeman be brought into a hundred and into a tithing, and that every one be brought into a hundred and in borh,'^ a distinction which is borne out by the division of the hundred in the Leges Henrici Primi into tithings and lord's pledges *^ or, as they are called in another passage, free pledges. All this evidence seems to make it probable that an arrange- ment by groups for police purposes was of comparatively early origin. A doubt seems to hang about the meaning of the word * borh ' : but although there are passages in which we seem almost forced to give it a personal application, analogy and later actual use make it probable that the word denotes some kind of mytually responsible group or organized police district. We have seen that Cnut's laws rank it alongside of the tithing. Now, the name tithing'^ would seem to suggest that it was part of the same system as the hundred. When the larger organiza- tion for police purposes was described as the hundred, to the smaller may have been applied the cognate term tithing. Thus in the south of England where perhaps these divisions were first applied, they were geographical, and the tithing corre- sponded to a vill or part of a vill. It is possible also that the tithing took the place of the lord's original liability and, there- POLICE AND LOCAL ADMINISTRATION 389 fore, comprised exactly the same area, namely, the manorial vill. But when the system came to be extended to parts of the country where the lord's influence was not so strong, it would rest on a different basis. Thus over a large part of England the tithing is found to denote a personal group of ten or twelve individuals headed by a chief-pledge or tithing-man. But in either case it was the duty of the township to see that its inhabitants were in frankpledge : when any one of them was accused of a crime and was not forthcoming, if he w^as a member of a tithing, the group was amerced ; but if he was not a member, the township itself suffered. This system of mutual responsibility was enforced in two ways— by amercements for failure of duty, and by periodical inspections which are thought to be as old certainly as the reign of Henry I. The Assize of Clarendon placed them in the hands of the sheriff; but probably from the first in a large number of cases the right was claimed and exercised by lords of manors. The court held for the purpose, calfed tlie sheriff's tourn and perhaps the manorial court leet, was apparently attended by the reeve and four men where the tithing and vill coincided, and by the chief pledge of each tithing where several such divisions were contained in a vill. In this court, as we have seen, has been found the origin of the jury of presentment. But it is to be noted that this system of police supervision was not by any means universal. In the first place, there were considerable parts of England where it did not exist at all, — for example, probably nowhere in the ancient kingdom of Northumbria; while in the thirteenth century both Westmoreland and Shrop- shire claimed to be free of it. Secondly, in the thirteenth century, the legal authority of the time states that every male of twelve years whether free or serf ought to be in frankpledge with certain exceptions. These are great lords, knights, clerks, freeholders, and those in mainpast, that is, in the household of another. But as a matter of fact, although in some boroughs — for example, Norwich — freemen were in frankpledge, in some shires a man's free status is given as the reason for his not being in frankpledge \ while, further, we find that those who were . so enrolled were unfree, placed where they were by the lord or his steward without any means of resistance on their part. 390 ENGLISH CONSTITUTIONAL HISTORY Muiclium. Alongside of the frankpledge grew up the Miodnim. Vox the better protection of the Normans ^^'ilHam I ordained that in the case of a murdered man his lord should either produce the homicide or pay as much of the large sum of 46 marks of silver as he was able, the residue being made up by the ^ S. C. 84, neighbouring hundred.^ By interpretation of the lawyers this § 3- came to mean that the burden of proof that the murdered man was not a Norman should lie upon the hundred in which the corpse was found : otherwise the heavy fine should be exacted. But here, as elsewhere, exemptions from its operation were granted to favoured districts. In the case of both Frankpledge and Murdrum the institution was maintained as a mere means of extorting money, long after it had lost any basis in reason. This is the meaning of a clause added to the Charter in its second reissue under Henry III, by which the sheriff is for- bidden to hold his tourn more than twice a year or to seek opportunities, other than those enjoyed by his predecessors - Ibid. under Henry II, for taking View of Frankpledge.^ But further, 346, § 42. thg Barons complain in their Petition (1258) at the Parliament of Oxford, that the sheriffs, at both annual tourns, require the personal attendance of earls and barons who hold lands in several districts and counties, and fine them heavily if they ^ Ibid. do not come.^ Accordingly, the Provisions of Westminster 384, § 17. (1259) release from ordinary attendance all of the rank of Imrones, excuse them from liability in any district except that in which they live, and enjoin the observance of the appropriate •» Ibid. clause of the Charter.'* In the same way, the author of the 402, § 4. Dialogus de Scaccario, writing in the reign of Henry II, alludes to the intermingling of the free classes in the country, which makes it impossible, a century after the Concjuest, to '^ Ibid. distinguish a Norman from an Englishman;'' yet we not only ^°'"^" find the liability to the Murdrum still existing, but its use pressed in the most unjustifiable manner. Thus in their Petition of 1258 the Barons again complain that, although in the time of dearth men are found dead from want of food, the district " Ibid. is fined before the justices '■ tafiquatn dc murdro.^'^ The system 385. § 21. rnay still have been found a useful check on violence or an aid in the detection of crime ; for, the Provisions of Westminster ' S C 401; content themselves with enjoining that such fine should only § 22. be exacted in the case of those feloniously slain." POLICE AND LOCAL ADMINISTRATION 39 1 Botli these methods, although sufficiently tenacious, would die out or be superseded in course of time. The sheriff's tourn and the private leet gave way to the reign of the justices of the peace. But the idea of responsibility did not altogether Regula- disappear. For, meanwhile, in the case of casual strangers !-'°"^ about whom the mediaeval law regarded with the utmost suspicion, responsibility was enforced on all who harboured them for more than a day.' Doubtless such vagrants would almost ^ S. C. entirely consist of fugitive villans from the manors ; so that, H5' § i^ ; although, on the one side, a lengthened residence in a chartered --715' § 4 • borough was allowed, perhaps in the interests of the borough's and 471, privileges, to confer the boon of freedom ; yet nothing must be ^ "*• done to aid such restless movement. Thus by the Assize of Clarendon the sheriff is to keep a register of all who have left their own shires, and if they are not to be found, their chattels * are forfeit to the king.'- Again, a sojourner for more than one ^ //>ic/. night (§ 16) may be detained until he can find bail, or, in the i45' § i^- milder terms of Henry Ill's legislation, unless his host will answer for him,'' a precaution which does not seem to have ^ //>tci, been necessary in harvest time. The Black Death gave an 375' § 4- enormous impulse to this wandering spirit, and led to strong and afterwards discriminative legislation, the conduct of which was entrusted chiefly to the holders of the new office of justice of the peace. The final regulation to be noticed is the provision made for Watch and the detection of actual fugitives from' justice. In the first place. Ward, in Anglo-Saxon times, the duty of the modern police constable seems to have been shared by all members of the fyrd, and, however much or little this may have meant, no further or more effective arrangements are found until the reign of Henry III. In a writ of 1233 for the conservation of the peace, provision is made for the regular nightly guard at city gates of at least four men who shall detain strangers and give the alarm in the case of fugitives."^ The importance attached to the punish- « /sid. ment of a defaulting watcher is shown by subjecting him not 362-3- to the sheriff but to the Itinerant Justices. Writs of 1252 and 1253 repeat and confirm these regulations, and bring them into connection with two important institutions — the Assize of Arms ^ or maintenance of the fyrd, and the Hue and Cry or ancient 27iVand method of pursuit of criminals.'' In a subsequent chapter it 375. 1285. 392 ENGLISH CONSTITUTIONAL HISTORY will be pointed out that the fyrd was the basis of the duty of Hue and watch and ward. The Hue afid Cry dates back to Eadgar's ^O'- Ordinance of the Hundred, where regulations are laid down for the pursuit of criminals by the entire population from one ^ S. C. 70. hundred and even one tithing to another.' The same liability of all to help in the arrest, which to this day forms part of the common law of England, was applied to the boroughs by - I/>id. 72, .-I^thelred." Possibly the duty of local presentment and the § 11. cap. 6. formation and liability of the frankpledge may have obscured this use of a /ez'ce en masse. as a means of direct arrest. But it reappears under Richard I in connection with the oath for the 3 /did. 264. preservation of the peace.^ Under Henry HI, in the writs already quoted, the duty is primarily entrusted to the special vigilatores or appointed watchers : twenty years later a special ■* Ibid. 372. officer, the constable, is added for this very purpose.'* Finally, /the whole mediaeval police system, on its active and aggressive side, is drawn together in Edward I's Statute of Winchester, by which provision is made for the Assize of Arms (§ 6), the presentment of offences (§ i), the responsibility of the hundred (§ 2), the maintenance of watch and ward, and the levy of hue and cry (§ 4). The Assize of Arms is to be carried out by the constables ; the sheriffs raise the hue and cry and keep suspected criminals, and the justices maintain a g^eneral and coercive super- * Ibid. vision over the entire arrangements.''^' 4^7°"4- § 58. With the decay of the sheriffs power fell the system of police of which he had' been the centre. The official who Justice of ultimately succeeded to his place was the Justice of the Peace, the Peace. u,id(.r whom the units of administration were the shire or county and the parish. The hundred as an administrative unit simply disappeared, and, besides the name, the only survival of its old functions was, until lately, its liability for damages in the event of a riot within its bounds. Origin of The origin of the Justice of the Peace is to be found in the office. Richard I's proclamation of 1195 which appointed or assigned knights to receive from all above the age of fifteen the oaths ^ Ibid. for the maintenance of the peace.^ Occasionally, under 4- Henry HI (1230, 1253, 1264), similar appointments were made. Under Edward I there were elected in the shire courts — in 1277 custodes ; and in 1285, to carry out the Statute of Winchester, conser7ond, the Act of 1597 enjoins his punish- ment by whipping in the first instance, by relegation to the parish on which he has some claim, and finally to the House POLICE AND LOCAL ADMIN LSTRATION 409 of Correction or to the common gaol, while dangerous persons were to be disposed of outside the country. This was practically repeated in the Act of 1601, the compre- hensive object of which has been described as the desire 'to provide work for those who could work, relief for those who could not, and punishment for those who would not.' ^ The 1 Cunning- parochial chargeability of the poor had only been gradually '^''i"^' ^"S- recognized. In the earlier Acts the hundred was generally q^^'^^ jj_ ^j_ chosen as the responsible unit for relief; but the Act of 1536 imposed a fine on the parish which should not relieve its impotent poor ; the Act of 1547 directed the curate to exhort his parishioners to relieve the needy born in the same parish ; the Act of 1551 laid the duty of collection and demand upon parochial officers. The Act of 1572 imposed the burden on the jurisdiction of the justices ; but the Act of 1597 returned to the parochial limit, which was maintained in the Act of 1601. It has been generally acknowledged that this last Act lays (2) 1601- down the principles on which a sound Poor Law should be ^^34- administered, and that it was the perversion of these principles r ^P^^l"""*^ — partly from motives of self-interest, partly from mistaken kind- principles ness — which led to the disastrous developments of the next two "f 1601. centuries. The steps in this downward course must be briefly noted. In the first place, the fear of the wealthier parishes that they would become chargeable with the needy whose own parishes could not sustain them, caused a stricter definition of this chargeability. The question of ' settlement ' had been The laws of dealt with first in the Act of 1572, and the justices were settlement. directed, if the parishes in which the poor aged and impotent persons were found were unwilling to provide for them, to settle such persons at ' meet and convenient places ' within their district, and to appoint a weekly sum for their support. - - Prothero, But this was far too vague. Until the Act of 1662, say the 7o- Commissioners of 1834, 'there seem to have been only two statutory grounds of settlement— birth, and residence, first for;; p three years, and afterwards in some cases for one .' -^ This 84. Act allowed the removal of any stranger within forty days back 14 Car. II. to his own parish where he had obtained a settlement (which ^- '2. was now defined as a continuous residence of forty days), unless the new comer could give sufficient security that he 410 ENGLISH CONSTITUTIONAL HISTORY would never become chargeable to the new parish. A man was thus removed, not because he had fallen into hopeless poverty, but on the chance that some day he might so fall. ^ '^^' ' Furthermore, by an Act of James II the ' forty days ' was to be reckoned from the time when the migrant gave notice to the overseer of his residence in the parish. Critics of the Poor Law have been unable to find language strong enough to condemn the laws of settlement. One author has described ^ Thorold them as consummating the degradation of the labourer by ■'^^S^,'^^' , making him a serf without land. ^ ' The iron of slavery,' IVor/c and ^ , . , , . , 1^,1. ,• , Wa"-es ^^ys another writer, entered mto the soul of the English 433. labourer.'- In fact, although the mischief of which it was the -Powle, cause may not be underestimated, the system could not work 63. ' in all its rigour, and certain relaxations were allowed. By an 3 Will. & Act of 1 69 1, 'derivative settlements ' were allowed through ^lary. payment of taxes for a year, serving an annual office, hiring 8 & 9 Will, fo^" ^ year, and apprenticeship. Again, in 1696, a further HI. c. 30. modification allowed the grant of a certificate of acknowledge- ment of settlement, under which safeguard the holder of it could migrate to a district where his labour was required, the new parish being assured that he would not become chargeable to it and, therefore, not troubling to remove him back until 36 Geo. HI. there was absolute need. Finally, in 1795, the removal of '^- 23- persons from any parish was forbidden, until they were actually ^ Report, in need of support. ^ At the same time, although the law was °5- thus relaxed, the fixed principle which caused the refusal of all permanent relief to labourers who had no settlement in the parish, and also to settled labourers who should reside else- where, acted as a very efficient check upon migration. But the derivative modes of obtaining a settlement were retained ; and churchwardens and overseers, in their anxiety to prevent the acquirement of such settlements, appealed to the law courts and spent, in constant litigation, a large portion of the money which should have been devoted to the relief of destitution. Increased Nor was this the only fault to be found with the method of power of expenditure. Tiie Act of 1 691 complains that churchwardens Justice in . . adminis- and overscers of the poor, by means of their unlimited power tration of and upon frivolous pretences, but chiefly for their own private ^^ ends, give relief to what persons and number they think fit, by which means the rates for the poor are daily increased. As rOLICE AND LOCAL ADMINLSTRATION 4II m a remedy the Act directs the keeping of a register with names and dates, which shall be examined annually by the vestry ; and that, beyond the persons then allowed, no relief shall be given ' except by authority of one justice, or by order of the bench of justices at Quarter Sessions.' The effect of this was practically to supersede the overseer by the justice in the granting of relief. The practice arose by which justices ordered relief at their own discretion and without the knowledge of the parish officers. The result was most fatal to the maintenance of the original principles of the poor law. The position of the justices has been described as 'that of charitable gentlemen to whom the oppressed poor could appeal against the tyranny of the overseers.'^ At the same time, the feeling, faithfully' Fowle reflected in Parliament, was prevalent, that the State should 79' ensure sufficient subsistence to the working population. At the beginning of George Ill's reign this led to much legislation in favour of the unrepresented people ; but it was not until 1795, and then only in an informal manner, that the principle w-as embodied in all its naked simplicity. The rise of prices consequent on the French war was bearing so hardly on the poorer classes that the Berkshire magistrates at Speenhamland, near Newbury, declared that further allowances were necessary ; and, while recommending farmers to increase their labourers' wages in proportion to the price of provisions, and themselves drawing up a scale of relief upon this basis, they promised to grant assistance to every poor family in proportion to its numbers. This Speenhamland Act of Parliainent, as it came to be called, was speedily imitated in many parts of England. It definitely established the principle of a right to relief in- dependent of work done. It made it more })rofitable to be idle than to work, and increased the rates to so vast an extent that they threatened in some cases to exceed the whole rent : large tracts of land, in consequence, went out of cultivation. There were other parallel methods of obtaining relief — no less than six such were discovered by the Commission of 1834 — most of which had for their object the employment, whether real or pretended, of the labourers by the farmers and other ratepayers at the expense of the parish.- - Report, This whole system of outdoor relief was legalized by the ^"l^'w u abrogation of the Workhouse test. During the closing years house test. 412 ENGLISH CONSTITUTIONAL HISTORY # of the seventeenth century, workhouses had been erected at Bristol and several other large towns, and were used as a test of destitution. The success of this experiment led to the 9 Geo. I. passing of an Act in 1722 by which parishes were allowed to '^' 7' unite and provide workhouses, and ' no poor who refused to be lodged or kept in such houses should be entitled to ask or receive parochial relief.' This seems to have met with im- mediate success ; but the humanitarian feelings of the time 22 Geo. contributed to discredit it. In 1782 ' Gilbert's Act,' attributing III. c 83. j-j-jg increased expenditure to the misconduct of the overseers, provided for the voluntary formation of Unions in each of which the workhouse should be supervised by paid guardians under the control of the justices. None but the impotent should go to the workhouse, but suitable employment should be found for the able-bodied near their homes. Sixty-seven 36 Geo. Unions were thus formed. In 1796 this was followed by the III. c. 23. entire abolition of the workhouse test ; for, in parishes which had not accepted Gilbert's Act the overseers were empowered to give relief in cases of sickness or distress at the applicant's own home, even though the applicant refused to conform to the Act of 1 722 and enter the workhouse as a sign of destitution. Law of The final violation of the Act of 1601 which requires notice bastardy. ^.^^g concerned with the administration of the laiv of bastardy. 18 Eliz. An Act of 1572 had thought it sufficient, in dealing with this c- 3. § 2. unpleasant subject, to enjoin that, in order that the support of illegitimate children should not defraud the aged and impotent poor of their relief, the justices should place "the burden of such a child's support upon its parents. Subsequent legislation made an attempt to punish the parents. Thus, under an Act of James I, the mother was to be imprisoned with hard labour. Two centuries later the sentimental feeling of the time turned the tables on the father, and by two Acts ' of 1809-10 a woman was actually allowed to fix the fatherhood of her as yet unborn child on any man, who was thereupon imprisoned until he should indemnify the parish against all charges connected willi his reputed offspring. The result was most disastrous to morality. The mother could ruin any man against whom she bore a grudge, while she herself not only lived comfortably on the allowance which the supposed father was compelled to make, but was the better off in pro- POLICE AND LOCAL ADMINLSTRATION 413 portion to the profligacy of her conduct, and was even 'considered a good object of marriage on account of these /"^ep"''^ 11 ^ M 96. weekly payments. The working of this deteriorated system may be briefly Results of summarized. The local overseers, a set of ignorant and un- departure principled men, who were only in ofiice for short periods ckjles^of""' varying from two to six months, were entirely overridden by 1601. the justices, philanthropic country gentlemen, who generally had no local knowledge, and were not specially interested in keeping down the poor-rate. For, the rate was levied on houses and on tithe. It consequently fell most heavily on small householders, such as the independent labourer, and on the tithe-owners, whether clergyman or local landlord. But the pauper could appeal from the overseer to any justice, and would consequently choose the weakest or the most charitable within his reach. Since 1795 the justices employed the power given them by the old law of 1562 to fix what they considered 5 Eliz. c. 4. should be the minimum of a labourer's fair wage, and under- took to supplement it in proportion to the number of his family. The farmers being the chief employers of labour welcomed the system ; for they either diminished wages to the minimum allowance of the justices, with the knowledge that it would be made up to their labourers from the rates ; or they dismissed their own men in favour of the paupers whom, in accordance with arrangements in vogue in many places, the parish compelled them to employ or at any rate to support. And thus the honest labourer was driven out of work, or at best had to accept in the minimum wage a less sum than was paid to the rate-aided pauper ; while marriages were recklessly made, the pauper going, as it has been said, straight from the church to the overseer ; and every encouragement was given not only to incontinence, but to immorality of the most flagrant kind. From as early as the middle of the seventeenth century onwards, many suggestions were made for remedying the evils which arose from the maladministration or the violation of the Act of 1601 ; but no legislative measure of improvement was passed until early in the present century. In 18 19, in accordance with the report of a Committee of the House of Commons, the power of the justices in the direct administra- 414 ENGLISH CONSTITUTIONAL HISTORY tion of relief was intercepted by the permissive establishment of select vestries which alone could order permanent relief in such places as established them. But their members were drawn from the same class as the overseers ; they were irre- sponsible, and made use of their power to attack the tithe- owners, lowering wages and increasing rates in order to swell the burden upon tithe. ^ 60. One of the first acts of the Reformed Parliament was to subject the whole system of poor relief to the searching investigation of a strong committee, whose report formed the The foundation of the Poor Law Amendmefit Act of 1834. ^^ ^^^ Poor Law. "^^i'"* provisions this Act attempted a reversion to the prin- 4& 5 Will, ciple of 1601, and acknowledged the duty of the State to IV. c. 76. provide for its destitute citizens. The organization for this purpose was centred in a board of three Poor Law Com- missioners appointed for five years. Their first business was to divide the country into administrative districts. Large towns and extensive and well-populated parishes remained as separate districts ; but rural parishes, varying from twenty to thirty in number, were grouped into separate Unions, as these districts were everywhere called. This formation could only proceed slowly, partly because Parliament refused to allow the voluntary Unions, formed under Gilbert's Act of 1782, to be dissolved except with their consent, and their continued existence much interfered with the new grouping of many districts ; partly because each Union was to support a so-called Workhouse, and these buildings took time to erect. England is now divided into about 650 Unions, the division having been made without any regard to previous areas of local government and inaugurating a confusion in local administra- tion which has been only slightly removed by the Act for the establishment of County Councils in 1889. The Central Board appoints Assistant Commissioners (who, since 1847, have been called Inspectors), and audits the accounts of each Union. The Unions themselves are administered by Boards of Guardians, unpaid officials elected by the ratepayers of each parish in number according to the size of the parish. But each parish while contributing, not according to its rate- able value but according to its expenditure in poor relief, to a common fund for the maintenance of the officers and POLICE AND LOCAL ADMINLSTRATION 415 workhouse of the Union, retained the chargeabiUty for its own poor. The workhouse was intended as a test of desti- tution, and owed its name to the intention of the framers of the Act, that it should be used for setting able-bodied paupers to work in the manner provided by the Statute of 1601. For, outdoor relief was to be gradually abolished ; and ten years after this Act a final order was issued that 'every able-bodied person . . . requiring relief . . . shall be relieved only in the workhouse of the Union.' The aged and impotent alone were exempted from the operation of this rule. This is not the place to praise or to censure a departure Its develop- from the principles laid down in 1834 ; but of the fact of such ^"^"^• a departure there can be no doubt. Here it will be enough merely to chronicle the changes in administration or practice that have taken place in the last sixty years. In the first place, at the expiration of their five years the Poor Law Com- missioners successfully defended themselves against a host of malicious attacks ; and, after having had their powers annually renewed from 1839 to 1842, they were further reappointed for five years. Hitherto the Commissioners had been indepen- dent of Parliament ; but now that the reforms had been carried through, it was thought better to make them into a ministerial department. Accordingly, in 1847, a Poor Law Board was formed, consisting of a number of great officials of State headed by a President with whom the whole work of the Board really lay. In 1871, the desire to bring the Poor Law administration more into connection with local govern- ment caused the Board to be merged in the newly con- stituted and more extensive Local Government Board. In the second place, a series of statutes from 1846 to 1865 trans- ferred the chargeability of the poor from the parish to the Union, and substituted a short residence of a year for all other methods of obtaining the settlement which constituted a claim for relief upon the Unions. In the third place, out- door relief, instead of becoming extinguished, largely exceeds in the number of its recipients the use of the workhouse as a limit and test of destitution. It is round this question of the advisability of outdoor relief that the battle between Poor Law reformers and philanthropists chiefly rages. The relaxa- tion in the original intention of the Act has been the result 4l6 ENGLISH CONSTITUTIONAL HISTORY of two exceptions allowed by the Commissioners. Outdoor relief might be granted in the case of either the aged, who were defined as all over sixty years of age ; or, by a subsequent order, the able-bodied who, through special circumstances affecting themselves or their families, were unable to work. The latter class of cases rested entirely on the discretion of the guardians. Owing to the irregularity of their attendance, the administration of the Poor Law in this respect — the sole point in which the initiative is left to the local bodies — is most capricious. Not only do Unions differ in the amount of outdoor relief allowed, but in the same Union, on successive days of meeting, two sets of guardians may attend imbued with diametrically opposite opinions on the advisability of outdoor relief. In any case, the way of escape allowed by the Central Board out of the rigid interpretation of the Act of 1834 has been seized upon by the guardians; and the re- cipients of outdoor relief steadily grew until their numbers were six times as great as those of the inmates of the houses. Considerable pressure from the Central Board has since reduced the proportion to three to one ; but the question is still a long way froni solution, and there is a tendency among a class of politicians to gain popularity by advocating a large scheme of outdoor relief. One result of the system has been to increase the expense of the relief administered in the work- houses, which, originally built on a large scale, are now half tenanted, and yet are obliged to maintain a staff suitable to the size and possible requirements of the building. Finally, the original intention of the workhouses has been completely lost sight of, and they have become the permanent abode of the thriftless and the unfortunate, and the temporary accom- modation of the tramp. In fact, the two points upon which all critics of the Poor Law would be agreed, are the want of moral classification among the inmates of a workhouse, the absence of which allows the unfortunate to be contaminated by contact with the thriftless ; and its total inability to deal with the ' casual pauper ' who remains, as he has been de- scribed, king of the situation, doing no work, subsisting upon mistaken private charity and only taking refuge in the work- house when driven by absolute need. The division of the country into Unions by the Act of 1834 POLICE AND LOCAL ADMINLSTRATION 417 formed a bad precedent for the extension of local government ^/^w ^^^^^ to other purposes. Although for the purposes of the Educa- administra- tion Act of 187 1 the Parish was chosen on the whole as the tion. unit, and although for sanitary purposes by the Act of 1872 the Union is the common area of administration and the Board of Guardians the sanitary authority ; yet in the course of the century there were formed Highway Boards and Urban Sanitary Districts, which might or might not correspond with any existing local area/ Much of this confusion has been ^ Cl". removed by the creation of County Councils in 1889, of which Chalmers, there are sixty for administrative counties and sixty-two for Covem- county boroughs mostly with a population of over 50,000. To ment. these bodies are entrusted powers taken partly from Quarter Sessions, partly from the highway and sanitary authorities. In 1894 the system of local government was completed by its extension to the smaller area of the parish.-^ In all rural - Jenks, An parishes there was set up a primary assembly called a Parish ^"^^"'^ ^/ Meeting consisting of all electors to Parliament or the County Local Council. In parishes of 300 inhabitants and more or, under Govem- certain conditions, in those of an even smaller population, ''''^^"^• there was established in addition a representative body called a Parish Council. Small parishes are allowed to group them- selves under a common Parish Council, and large parishes can be grouped into electoral wards. In the former case each parish, and in the latter case each ward, has a separate Parish Meeting. The powers of these bodies are partly old, consisting of the civil duties of the vestry, the power hitherto belonging to the justices of the peace of appointing overseers of the poor, and certain duties and powers hitherto discharged by the churchwardens, overseers and guardians. To these have been added new powers, the chief of which perhaps are exercised in connection with allotments and parochial charities of a certain kind. It should be noticed that very stringent limits are placed upon the power of these bodies to levy a local rate. The extent of the application of this scheme of local self- government may be gauged from the fact that there are nearly 7,000 parishes with Parish Councils and about 6,000 more which are not of sufificient size to be compelled to resort to any administrative machinery more elaborate than an annual Parish Meeting. 2 E 41 8 ENGLISH CONSTITUTIONAL HISTORY Boroughs. g 6i. Tacitus tells us that the German tribes 'abhorred walled towns as the defences of slavery and the graves of \Hisf.i\\ freedom." It is in the towns of the provinces that the ■*■ advocates for Roman continuity have hitherto found their chief examples. But while recent students seem to deny such continuity even in the towns of Gaul, the ingenuity of a few enthusiasts has never gained currency for a Roman origin of English borou(;hs. Unhampered, then, by any ambiguous account of a previous organization, we may proceed to ask why certain spots in the country gradually became separated from the surrounding districts and acquired an organization and privileges of their own. \Ve have seen that the prevailing local unit was the vill : but its lack of organization soon brings its history to an end. In some sense, no doubt, ' the burh of the Anglo-Saxon period was simply a more strictly - S. C. H. organized form ' of the vill.- But the power of self-government § 44- which it soon acquires puts it on a plane with the administra- tive areas of the hundred and shire ; and the later interest of the history of the borough is concentrated on its development into a corporation, an ideal person in the eyes of the law, iDiiversitas in contradistinction to the co/?imunitates, the organ- is p andM. ^-^^^ groups of individuals known as the shires, the hundreds, 472, 660. the vills.'' In its origin ' the burh was the fortified house and court-yard * S. C. H. of the mighty man — the king, the magistrate or the noble,''' § 44- and from an early date the law protected it against the attacks ■' S. C. 62, of the marauder. Inc ordains '' that the violation of a king's ^ '*^' or bishop's house {hurg-bryce is the name of the offence) shall be atoned for by the huge payment of 120 shillings, and that The Anglo- of Other classes likely to have burhs, in proportion. A law of Saxon ,4ilfred to the same effect carries the penalty as low as fifteen shillings for the burh-bryce of a six-hynd man, that is, of one whose ' wergild ' is 600 shillings. This looks as if every sub- stantial thegn in a technical sense might be said to inhabit a burh. But in the course of the tenth century the term acquired a more restricted meaning. Already by the time of yElfred the sacredness of the king's burh was defended by a penalty out of all comparison with that exacted in the case of any other lord. 'I'he king's burh was becoming more than a palace : it was an administrative centre. It acquired a burh- POLICE AND LOCAL ADMINISTRATION 419 gemot and a market ; it was the residence of a moneyer ; it would often contain a gild. The reason for the rise of this new kind of community is perhaps in the first instance to be sought in the defensive needs of the country. The earliest charters except, from all but the most extensive grants, three duties which came to be called ' trinoda necessitas.' One of these was burh-l>ot — the duty of maintaining the walls of the burh Perhaps the king asserted his sovereignty over the ceded district by continuing to extort from its inhabitants, among other duties, that of keeping in repair the walls of the fortified royal houses which were the chief defence against the incursions of Britons or of the other English tribes. The Danish invasions must have enhanced the importance of these places of refuge and protection, and the military works of Eadward the Elder and his sister probably placed them on an entirely new footing in the general organization of the country. There is evidence that in the course of the tenth century the country was covered with burhs, many of them places already in existence, but now fortified for military purposes. The duty of maintaining these fortifications seems to have been laid upon the inhabitants of the surrounding district. But ' burh-bot ' did not provide for • their permanent defence : a permanent population was perhaps provided by laying upon the great thegns of the surrounding district the duty of keeping so many inhabited houses within the burh. This would account for what has been called the ' tenurial heterogeneity of the burgesses ' mentioned in Domes- day, that is, the fact that all the burgesses of any particular borough hardly ever hold their tenements of the same land- lord. It would also account for the fact that the houses held of any particular lord within a borough are often reckoned as belonging to a manor which lies at a distance from the borough. They are the houses — murales mansiones they are called at Oxford ^—through whose maintenance the lord of the manor 1 s. C. 90. discharges his obligation towards the permanent defences of the country. These inhabitants thus artificially brought together were something like professional soldiers. In the t,-'^ondon, absence of natural bonds they would form themselves into bury, Win- gilds for religious or social purposes : we hear of knight-gilds Chester, in more than one town before or just after the Norman ^''^^^'^> Conquest.- Other but similar kinds of voluntary associations bridge. 420 ENGLISH CONSTITUTIONAL HISTORY probably existed from an early date in seaports or wherever else chance assemblies' of men were permanently gathered. The frith-gilds of .4^thelstan's day may have been the officially recognized form for police purposes of such old associations, the forerunner or prototype of the frankpledge. The transition to the usual form of association at a later time may be dis- covered in the knights of the chapman gild of Canterbury who were contemporary with Anselm. Two more effects of this artificial character of the Anglo- Saxon burh may be noted. A market would be established within the burh, and the burh would acquire a moot or court of its own. The presence of an artificially created population would necessitate the maintenance of a specially stringent peace in the buih. Its inhabitants would be in the mund of the king. In lawless days this was a matter of the utmost importance, and not only would a peaceful population of handicraftsmen and traders grow up beside the garrison, but a market would be established within the walls of the burh. When theft was a constant danger it was necessary to ordain that all commercial transactions, to be valid, must take place * before witnesses. Thus, while ^thelstan tries closely to restrict the buying and seUing which may go on outside a burh by ordaining that ' no man buy any property out of port over 1 S. C. 66, XX pence,' ^ Eadgar requires the appointment of official witnesses § ^-- — xii in every hundred and small burh, xxxiii (perhaps it should - //>n/. 72, be xxxvi) in every ordinary burh.'- Even an inland place which i>!> 4) 5- enjoyed a market was known as a /^orf, and there were many markets which were not held in burhs : but the combination of security to the traders with toll from them to the king would tend to establish the most important markets within the walls of burhs. On the other hand, while a vill could do very well without a court apart from the assembly of the hundred in which it appeared by representatives, amidst a miscellaneous population such as had been gathered into a burh, a moot must have been essential. A law of yKthelstan lays upon the chief men of the burh the duty of coercing a constant absentee from a gemot : but the necessity that the exactors should ride „ ^^'"^- ^^' may point to the gemot indicated as being a shire court." 4 „ ' , Kadgar, however, definitely ordains that a burh-gemot is to be § 5. ' held three times a year.' It is possible that London may POLICE AND LOCAL ADMINLSTRATION 42 1 have been 'a bundle of communities, townships, parishes, and lordships, of which each has its own constitution,' ' and may, ' .S". C. H. therefore, have found its origin in 'a cluster of townships ^'3J> which had coalesced.' But probably this would not be true • ^ ^° s 44- of any other burh. Where the owner of a few houses is noted as having ' sake and soke ' over their inhabitants this may mean that for jurisdictional purposes they are attached to one of, the owner's distant manors. The lord of a large number of tenant's might hold a court which would seriously hamper the action of the burh-moot, but its organization would be subsequent to that of the burh and would be, as it were, ' a little liberty lying within the borough walls.' - The court would be presided over by '' Domes- a reeve, whether port-reeve or other, who would be accountable to '^-^'' ^^°' the sheriff to whom he probably owed his appointment. Whoever originally may have been the suitors at this court, the increase of business and the requirement of official witnesses would soon lead to the formation of a permanent body of doomsmen. Such were probably the lawmen found in the five Danish boroughs and in one or two other places. It was not a wide- spread organization, but it seems to show that whatever govern- ment there was, was of an aristocratic nature. Perhaps in theory the suitors of the court should have been the burgesses : in any case the burgesses formed the aristocracy of the town. Now the essence of burghership comes to be burgage tenure, and burgage tenure is practically heritable tenure at a money rent. It may have come about in different ways : the trader who settled in the burh, from the first would pay a money rent to the king or some other lord : the representative of the great neighbouring landowner and his liability, might hold by a rent which would represent 'commuted wall-work.' ^ The payment " Ibid. 200. of these rents gave the first opening for the advance of the burh in the direction of self-government. For, it was here that there began the practice of letting out the burh to farm. The sheriff through whom the payments would be made, would accept a lump sum from the burgesses or from the reeve. The tolls from the market and the wites from the moot would be similarly treated, and the whole would make up the ferm of the burh — firtna burgi — which would constitute an im- portant part of the profit of the sheriff out of which he recouped himself for the sum, the ferm of the shire, for which 422 F.XGLISII CONSTITUTIONAL HISTORY he was held accountable lo the royal Treasury. Then, when the Danegeld began to be imposed the burhs no less than the hundreds were assessed at a round sum as if each contained a certain number of hides. In this case, as when the sheriff farmed the burh to its burgesses, writers have been inclined to see the existence of corporate responsibility for the geld and corporate enjoyment of the profits. It seems likely, however, that in the case of the geld the sum due was repartitioned afresh at each exaction among the holders of the burgage tenements, while the profits were divided annually or even immediately exhausted at a bytt-fylling or some similar festive meeting. Had it been otherwise, could we really attribute corporate action and the possession of property to the burgesses at the first mention of their recognition as a body to be dealt with by the sheriff, the peculiar organization of the burh would have been accomplished and there would be little more to investigate in its history. As yet, however, the body of burgesses did not differ from the community that assembled in the hundred or the shire courts. Such responsibility as there was, was a joint and several responsibility : each burgess was regarded by the sheriff as having agreed with him for the payment of the whole sum of the ferm or the geld due from the borough. So far we have been dealing with the most important class of ancient burhs — those which owed their origin to the organiza- tion of the defences of the country. Some of these seem to have decayed before the Norman Conquest. But, meanwhile, the payment of rent had begun, and Domesday occasionally mentions burgesses — the holders of burgage tenements — who do not live in a burh. It may be that the only real burhs were the great shire towns with their mark of ' tenurial hetero- geneity,' and the small burhs differed little from the ordinary Domes- vills ; ' but the distinction between a burh and a vill had been day, 216, thoroughly established, and clusters of habitations which had grown up round a seaport, a market, a royal palace, even a monastery or a shrine, were beginning to be treated as something different from the surrounding manors. The king or a great lord, a bishop or an earl, would create a borough by enfranchising the inhabitants of a manor on his demesne : even in the older burhs the ' tenurial heterogeneity ' sometimes disappears; the mesne lords are mere rent receivers for the note. POIJCE AND LOCAL ADMINLSTRATION 423 tenements wliich they own ; the inhabitants are suitors to the burh-gemot held under the king's port-reeve : or the king has granted away to an earl his rights over an ancient borough. There is, however, a deep distinction between the old and the new boroughs, and the old boroughs have taken a long step towards the acquisition of the privileges into the enjoyment of which the new boroughs will enter with, if not in some cases actually before, those of most ancient origin. The Norman Conquest affected the towns in three im- Effect of portant ways. (i) The boroughs all came to be regarded the Norman as in some lord's demesne. This placed the burgesses — the ^-o"^"*^^*^- holders of the burgage tenure, the suitors of the burh-gemots — in the semi-dependent position of villan tenants, and was soon made to carry with it, over and above the annual firma burgi, an occasional payment known as Tallage, which might be exacted by every lord from the towns in his demesne. (2) At the same time, the few existing towns suffered severely ; for, the civic population recorded in Domesday fell from 17,000 to 7,000. This was due to the long resistance which the Danish portion of the population is said to have offered, and to the clearances made by William in order to obtain sites for castles for military purposes. And yet this diminished number of burgesses was made responsible for the same firma burgi. (3) To crown their misfortunes, although a law of the Conqueror^ ^ .S'. C. 84, made all Frenchmen settled in England in the days of King § 4- Edward to be at scot and lot (i.e. to take their share in taxa- tion) with the other inhabitants according to the law of England ; yet this very distinction seems to imply that the much greater number of foreign artisans who followed in the wake of the Conquest itself, occupied an exceptional position. The efforts of the towns in the direction of self-government Efforts for had for their first object the acquisition of freedom from the Self- judicial and financial control of the sheriff, and their success is ^^^™' recorded in the charters which they won from the kings or their 2 _<,-_ c_ j/^ lords.' These may be dealt with in two groups. The first § 131. comprises those charters granted by the Norman kings. Qf^ S. C. 108. these Henry I's grant to London ' is as much more important ^V Nor-^'^ as it is in advance of any other in the privileges won. The mans, first object of all towns was the definite settlement of their 1066-1154. firma ; and some, such as Chester,'* had gained this even ^^'^- ^^' 424 ENGLISH CONSTITUTIONAL HISTORY before the Conquest. This in itself had a twofold object and result — to get rid of the interference and arbitrary assessment of the sheriff, and to shake off the theory of villenage : for the customs of Newcastle show an established distinction between ' .s'. C. 112. a burgess and a villan.^ After the settlement of the ferm, London gained the election of its o-wn sheriff and justiciar. This was far in advance of anything yet gained by other towns, and its object was not only that the citizens might be amenable to the jurisdiction of their own courts and magistrates alone, but, in the case of London, that even pleas of the crown, which were in an ordinary case specially exempted, might be kept by its own officer. A not unnatural corollary to this grant of jurisdiction was freedom from the hated Norman innovations of the liability to the payment of murdrum and of procedure '- ihid. III. byway of diiellum or trial by battle." Again, it was no small privilege that the burgesses should be freed from the indefinite exactions of the king which went by the name of scot and lot, or from the oppressive Danegeld. Lastly, while other towns, 3 Ibid. I lo. such as York and Beverley,^ gained freedom from tolls throughout their respective shires, to London alone was it granted that such freedom should include the whole of England. The charters granted to towns by the Norman kings call for two general remarks. In the first place, the London Charter became a model to smaller towns for some time to come. ^ 'Ibid. Thus, the charters of Richard I to Winchester and to Lincoln,* ^/1~J '^"^ ^^^^ ^° Northampton ■'' under John, will be found practically to correspond in the detailed privileges granted, with those which London gained from Henry I. And, secondly, it is clear that, in a smaller way, the charters bf certain towns became a model for the other towns in their district. Thus the Archbishop of York grants to Beverley the same privileges as the citizens of York already possess ; the burgesses of ^ Ibid. 313. Hartlepool" gain from John the liberties and laws enjoyed by Newcastle : while the same king grants to Helston "^ the liberties and customs of Launceston. (2) Under Under the early Plantagenet kings the charters to towns Planu ^- g''*^^^ f^>^ more frequent and full. To begin with, they contain nets, a grant of those privileges, often much extended, which London 1154-1191. had already obtained — the settlement of their firma ; the POLICE AND LOCAL ADMINISTRATION 425 election of their own bailiffs together with (though this point is not yet generally conceded) special provision for pleas of the crown ; the maintenance of such old rights of jurisdiction as were implied in the grants of sake and soke, toll, team and infangenthef, together with freedom from the innovations of the murdrum and duellum, and from various kinds of fines of which many were the mark of villan tenure ; and finally, freedom from tolls, not only over England, but throughout the king's dominions generally : and with this was generally combined the power of reprisal for any tolls unjustly levied. This growth in the privileges of boroughs was largely due to the overriding of feudal claims by the king. When he allows that the citizens of London ' non placitabunt extra muros civitatis pro ullo placito ' ^ he is ignoring the claims of the lord ^ S. C. 108. of certain tenements inside the borough to the suit of those tenants whose tenements are often attached to the court of some distant manor. In the same way, when he recognizes that residence for a year and a day within a borough shall confer freedom on the unreclaimed villan, he is treating the whole borough as if it were a manor in the ancient demesne 2 //;2^. n,, of the Crown.- The serf is not actually free, but no one '66- except th^ king shall have jurisdiction over him.-' :; 7/,/^ 167. There was much, however, to be done before the boroughs could be called self-governing communities, free from outside influence. Many of the smaller boroughs remained in the hands of some mesne lord, who sent his steward to preside in their courts and exacted tallage from the burgesses. Even the greater boroughs had to put up with seignorial jurisdictions within their walls. Nor did the king in the least intend that the privileges granted to the boroughs should hinder the general administrative system of the country. The courts of the manorial lords, the Church and the boroughs alike should be subjected to royal supervision. ' The group of burgesses was a franchise-holder in a land full of franchise-holders, and had to submit to the rules which governed the other possessors of royal rights.'^ Thus they continued to be amenable both * r. and III. to the king's court and to the sheriff of the shire. The '• ^52. jurisdiction of the borough court was a limited one. In civil cases a proprietary action for a burgage tenement could only be begun by the king's writ of right, while the criminal 426 ENGLISH CONSTITUTIOXAT. HISTORY powers of the borough magistrates were confined within the very moderate limits which the royal lawyers came to allow to the old grants of sake and soke with their accompaniments. Moreover, not only had the borough to appear by twelve representatives before the justices in eyre to make presentments ' S. C. 358. of all that went on within the borough,' but the king's com- missioners would sit in the borough itself to hold gaol deliveries and even eyres. Again, in matters of taxation, the payment of the firma burgi gave to the burgesses themselves the right of levying the burgage rents, and often of taking the tolls for their market and the amercements arising from their court. Yet they were themselves as a body liable to be fined or amerced in the shire court or before the king's judges ; and to the sheriff was entrusted the duty of collecting from them that arbitrary aid (auxilium burgi) which had grown into the - Jdid. 444, Tallage;^ while they might not even levy any occasional W^"im ''°^^^ '"^^^^ without the royal leave. Finally, the sheriff super- 430. vised the military array of the burgesses : he saw that they '■' ^- C. 371. among others had been sworn to arms ^ and summoned them ■* ^^'^^- 359- all, when necessary, to the field. ^ The begin- And in nothing that the boroughs had yet gained are we ning of the justified in seeing that idea of corporate capacity of possession idea. ' or liability which constitutes the essence of a modern borough. When the king grants that the burgesses and their heirs shall hold their tenements in free burgage, it is a privilege that applies severally to each individual burgess. Even when he grants that the burgesses shall hold the borough to farm, it is to the burgesses as a body of individuals that he grants it, and in no sense does the grant mark them off from the neigh- bouring hundreds which are farmed by their respective bailiffs. Again the amercement of a borough does not point to corporate liability ; for when the money has to be paid, it is levied from a few of the leading burgesses who are left to recoup them- selves through the agency of the borough court. The fact was that before the idea of incorporation could arise there must be a distinction between the property of the individual burgesses and the common property of the borough as such. True the borough already possessed privileges — franchises as they should be called ; and it is in connection with their possession that the corporate idea slowly emerges ; for, the POLICE AND LOCAL ADMINLSTRATION 427 franchises of any of the other communities of the land were not of such a nature as needed active assertion and maintenance. But the most valuable of its franchises consisted of tolls which could be divided up among the individual burgesses. It was not until towards the close of the Middle Ages that they became endowed with land. This was due to the generosity of individual burgesses and the gifts by king or lord, of the meadows over which the burgesses had hitherto exercised common rights of pasture. There was no need to apply the i279-_ prohibitions of the Statute of Mortmain to boroughs until more '^,^'^' than a century after its first promulgation. It would be im- possible to say that in the eyes of the law the borough became a corporate body at any given moment in its history. The employment of a common seal would do much to emphasize the unity of the borough in the eyes of strangers : the constant interference of the king ending in the grant of a charter bestowing new privileges, would serve to distinguish it from the hundred or shire which owed their existence not to definite grant, but to immemorial recognition. Then the citizens of London took advantage of Richard I's absence to gain recognition of their nQi- Commuiia — 'a thing which neither Richard nor his father,' exclaims the indignant chronicler ' would ever have allowed.' ' ' -^ ^.-52- '^ , , ,, . Kic. Divis. This was a government by a mayor and a small aristo- p ^^^ cratic body who came to be known as aldermen. The sheriff or sheriffs who since the charter of Henry I had farmed both London and the whole of Middlesex, now took a sub- ordinate position as ' merely the financial ' representatives of the citizens. And when Magna Carta granted to the ' barones ' of the city of London the right of electing their Mayor every year, the Communa became an established fact. In itself it can scarcely be said to have established the corporate idea. As far as London was concerned, it probably gave to the somewhat heterogeneous collection of communities an unity which they had hitherto not enjoyed. But many other boroughs hastened to obtain the same form of government, perhaps aiming at the extensive privileges which gave London its unicjue position. But, that these privileges were not essential to a borough is proved by the fact that Winchester had to wait until the reign of Edward III before it got even the permanent settlement of its lirma burgi, while Norwich, one of the first 428 ENf;TJSlT CONSTITUTIONAT. HISTORY cities in the kingdom, had no mayor until the beginning of the fifteenth century. The Muni- Now, the estabHshment of the Communa was the victory of cipality and ^^ oHgarchy. The burgesses as a body or as represented by chant Gild '^'^^ doomsmen of the burh-gemot were the aristocracy of the town. With the definition of burgherhood as occupation of one of the old burgage tenements, they need no longer be afraid of arbitrary additions to their number from outside. While, therefore, they closed their ranks on the one side, on the other side they took upon themselves to confer the rights of burghership on outsiders and so helped to get rid of the position which they had hitherto occupied as 'a mere group of joint tenants or co-owners.' The important part played by the merchant gild in this change has caused much misunder- standing among both lawyers and historians as to tlie relations between the merchant gild and the governing body in mediaeval towns. The early charters granted to boroughs frequently contain mention of the merchant gild. Thus, Henry II grants to Lincoln ' its own gild merchant of the men of the city and ot the other merchants of the county, as they had it in the ^ S. C. i66. time of his predecessors,' ^ and to Oxford ' its own merchant gild ... so that no one who was not of the gildhall should . carry on any merchandise in the suburbs, except as he used -Ibid. 167. to do it in the time of Henry I." In their charters to Winchester both Henry II and Richard I speak of ' our '■^ Ibid. 166, citizens of Winchester of the merchant gild';^ while Richard, 265- without any mention of the merchant gild, grants to the citizens of Lincoln in an especially full charter, freedom from tolls throughout England. To the same purpose John unites in one grant the gild, the hansa and freedom from every kind of ^ S. C. 11. toll.'* It seems difificult to interpret these otherwise than as § i^S- an identification, by authority, of the members of the merchant gild and of the borough court. Of course some places — and those of considerable commercial importance — never had a merchant gild. In London there are but slight traces of its existence ; in Norwich there are no traces at all. In other important towns the gild and the governing body became practically identical. But as a rule the organization of the gild would be separate from that of the governing body of the town. For, the object of the merchant gild was clearly POLICE AND LOCAL ADMINISTRATION 429 defined. It would be iwofold, the one exclusive — to get for the gild-brethren a monopoly of trade in the town and the privilege of trading in other towns ; the other inclusive — to let all within the gild share in all advantages of trade, and to secure help for its members in sickness or misfortune. Thus the inducements to join the gild would be the possession of a commercial status which membership with such a body would give, and the possibility of procuring better terms of foreign trade by combination. With regard to the member- ship of the gild, it is important to note that (i) not even all the burgesses in the town would belong to it ; while in many towns there were classes, hke the Jews and Flemish weavers, who held their privileges by direct grant from the crown, and would thus claim to be independent of the gild. Again (2) in some towns there were members of the gild who were not burgesses, such, for example, as burgesses of other towns and sometimes even neighbouring monasteries and lords of manors. At the same time, at any rate in some towns, membership of the gild must have been fairly comprehensive, so as to include men in a very humble way of business ; for, while the towns were mainly agricultural, not only was the gild widely spread (we know of 150 towns which obtained the privilege in the twelfth and thirteenth centuries), but it contained, even in the small town of Totnes, as many as 200 members. § 62. As a general rule, however, the Communa and the merchant gild were equally aristocratic institutions. Thus it is not surprising that the establishment of the former was followed immediately by the outbreak of violent quarrels in London. In 1 196 William Fitz-Osbert, on behalf of the poorer citizens, complained that they were made to bear an undue proportion of the burden of the taxes : but the riot which he led only ended in his death. This was but a foretaste of the The Craft quarrels which arose from the relations between the merchant Gilds, and the craft gilds. The latter were associations of all artisans who were engaged in a particular industry in a particular town. They came into existence a century later than the merchant gilds, that is, in a few cases in the twelfth century ; but in the following century they were to be found in all branches of manufacture and in every industrial centre. They were first formed, [)erhaps, like the merchant gilds, by foreigners, chiefly 430 ENGLISH CONSTITUTIONAL HISTORY 1 B)- Pro- fessor Ashley and, more cautiously, by Dr. Stubbs. Their re- lation to the Mer- chant Gild. - Drs. Cun- ningham and Gross. Causes of their decline. •■ Thorold Rogers, IVor/: and IVa^es, 346; v.-eavers, of whom a great stream came after the Conquest from Flanders under the protection of Queen Matilda. For this reason, no doubt, even when the craft had spread to the native English, weavers were for a long time excluded from any posi- tion in the towns, and craft gilds were regarded with suspicion. Those which were formed without the royal sanction (adul- terine gilds, as they were called) were heavily fined, though not necessarily suppressed. A century later, under Edward I, these organizations were encouraged as a counterpoise to the rising oligarchy in the towns. In many cases that oligarchy was co-extensive with the merchant gild, and an important question arises as to the connection of the merchant and craft gilds. We are met by two entirely opposite views. On the one side it is held ^ that the craft gilds were formed in self- defence out of the landless, and consequently unenfranchised, artisans to resist the oppression of the merchant gild, armed as it often was wdth the powers of a municipality. On the other side it is urged that civic quarrels were not, as such a view would imply, between capital and labour, but between burgess and alien.- Few towns would possess a sufficient number of merchants to form an organization of wealth for the oppression of the craftsmen. Moreover, the regulations of the crafts insist on good work, and there is little in them that would protect the members from outside oppression ; while the approval of the town magistrates was needed for their recogni- tion and enforcement. Thus it seems more likely that craft gilds were formed with the approval and encouragement of the magistrates for the regulation of industry in particular branches. But whichever of these, if either, may have been the origin of the craft gilds, by the end of Edward Ill's reign citizenship came to be bound up with membership in one of the crafts, until the decline of the gilds at the end of the si.xteenth century. It has been usual to believe that an Act of 1545, which was re-enacted and enforced in 1547, con- fiscated to the king the property of the gilds on the plea that a great portion of their wealth was spent in superstitious uses ; and that thus at one sweep disappeared ' the benefit societies of the Middle Ages.'^ It has, on the other hand, been shown that the intention of the Acts of 1545 and 1547 was very different and that the sole result of the latter, which alone rOLICK AND LOCAL AimiNLSTRATION 43 I took effect, was to vest in the king, as rentcharges, all sums of ^,.^„_ money hitherto devoted to the maintenance of any religious Interp. of service or establishment ; that the gilds were close corpora- (^'f ^^,^^ ' tions whose funds benefited few besides the families of the ningham, members ; that there is mention of several gilds and recogni- Eng. ind. tion by statute of their officers for the discharge of public I'" g"'"" duties in the reign of Elizabeth, and that the practical dis- appearance of the gilds was' due to economic causes, such as the introduction of new industries and the spread of the ' domestic ' system of manufacture. The London gilds, which were treated in no respect differently to the rest, have alone survived, not because they were too rich to be touched, but because they were more than gilds of artisans, that is, they ' Ashley, were wealthy corporations whose civic duties survived the ." ".• "^"f: disuse of those economic functions for the discharge of which 139-155. they had been called into existence.^ There seems sufficient proof that at its first establishment Growth of local self-government was founded on a tolerably wide basis. pHgarchy Evidence drawn from such unconnected places as Hereford, ["^,,-,5 Ipswich and Beverley, seems to show that citizenship could be easily obtained and that the bailiff or other local magistrate was elected by the whole community. The great change which did away with this popular government, was due partly to the growing inequalities of wealth, partly to that important feature of the Middle Ages — the disinclination for duties of any sort unless they were accompanied by some manifest advantage. Thus we find in the fourteenth century, equally, for example, in Scarborough and in King's Lynn, a recognized distinction between the rich, the middle class, and the poor {ciivites or potentiores^ mediocre s, pauperes or infer lores) ; and thus, folloNying the example of London, already noted, com- plaints are found at Stamford (1260), Gloucester (1290), and Oxford (1293) of the unjust taxation of the poor by the rich. Li short, it must be owned that 'the few well-to-do persons of the community who aspired to fill public positions were not prompted by any love of fame or glory. They had in mind a far more practical and unworthy end — namely, to manipulate the financial system of the borough in such ways as to promote '~f- W. their own interests by putting burdens on other people's £;fJ''///sL shoulders.'- But this was only the beginning of the end. AVt'. v. 645. 43- ENGLISH COISSTITUTIONAL HISTORY Exam- ples :— Win- chester. Leicesler. 1 .S-. C. §4^8. Exeter. //. The oppressions and usurpations of the richer citizens did not pass without protest from their poorer fellows. Sometimes an appeal was made to the Courts of Common law, sometimes resort was had to arbitration ; while occasionally, as at Bristol in 1317, a serious popular outbreak was the result. But on the whole, the indifference and poverty of the mass of citizens gradually gave the victory to the wealthy few. Thus it early became the custom for a body of twelve or twenty-four to be annually elected as a committee of the whole community of citizens. Now, in the case of Winchester, early in the reign of Edward I, the two baiUffs who existed side by side with the mayor were elected, one by the committee, the other by the general body of the people. Under Henry VI, a cen- tury and a half later, the committee had practically usurped the nomination of both officials, leaving to the general body of citizens the empty right of confirmation. It only needed the grant of charters of incorporation horn the crown to legalize the custom and confirm the power to the oligarchy which had usurped it. A few towns had obtained, by Act of Parliament, a recognition of their local customs ; but Henry VI began the easier and more common form of royal charter for this purpose. Thus at Leicester, in 1464, Edward IV recognized a body of twenty-four mayor's brethren and a common council of twice that number. Three years after- wards this latter body obtained the election of the mayor. In 1484 the former committee became aldermen and divided the town into twelve wards, merely for police purposes ; while in 1489 the mayor, the brethren and the common council formed themselves into a close corporation, and their position was assured to them both by Act of Parliament and by royal charter.^ In Exeter, again, the commune concilium of the city, which had once consisted of the whole body of the freemen — the tota villata as it is elsewhere described — was narrowed down to a body of twenty-four, in whose hands was placed the election first of the aldermen (1288), then of the mayor (1347). During the century and a half which followed, this narrow committee was transforming itself into a permanent self-elected body until the charter of 1497 practically con- firmed the privileges which it had monopolized. The charter of Charles I (1627) only added to its powers. P>ut in Exeter, POLICE AND LOCAL ADMINLSTRATION 433 unlike the majority of corporate towns, the election of members of Parliament never fell into the hands of this exclusive corpora- ' Freeman, tion. It remained with the whole body of freemenJ Exeter. The last development in municipal government which calls for notice, was the constitution of some of the largest towns as counties, with sheriffs and a shire jurisdiction of their own.- ^ S. C. H. This involved the final banishment of the sheriff of the shire "'■ § 488. from interference in their concerns. Henry Ts charter had n-,^^°"^ .^ already given this ]")rivilege to London ; but not for more than Shires. 200 years did any other town attain it. Edward III gave it to Bristol in 1373, Richard II to York in 1397. In the., . fifteenth century it became more common, and, finally, about y^^^^/^^ eighteen towns procured the privilege, the majority of whom and Police, retain it to the present day.^ 7i note. Such were the corporations which formed the strongholds of the Whigs when that party came into existence, and which, on that account, were attacked successively by Charles II and his brother James II. The details need not detain us ; for, the new charters granted were drawn on even narrower lines than were those which they superseded. It was not until the Reform Modern Parliament that any change was made, and the Municipal "''""''^'P^ Corporations Act of 1835 ' provided a uniform constitution for all boroughs to which it applied, based on the model of the best municipal corporations.' This consisted of a council composed of the mayor, aldermen, and common councillors. The councillors are elected by all ratepaying residents of either sex for three years, a third retiring annually ; and their number is fixed at the time of incorporation. The aldermen are in number one third of that of the councillors, by whom they are appointed for six years, one half retiring triennially by rotation. The mayor is elected annually by the council from among the aldermen or councillors. Finally, the Municipal Corporations Act of 1882 made this constitution compulsory, and an Act of the following year abolished all municipal corporations which did not come within the provisions of the Act of 1882. The three hundred existing boroughs of Eng- land and Wales are regulated by this Act. The judicial constitution of boroughs varies greatly. The Act of 1835 did away with the judicial authority of the alder- men and with the elected justices of the peace. In their 2 F 434 ENGLISH CONSTITUTIONAL HISTORY place in every borough there were naturally two justices of the peace, the Mayor and the ex-Mayor. But besides these, most boroughs of any size have a separate commission of the peace which includes the county justices together with some additional justices of their own. Further, it is possible for a borough to have a court of Quarter Sessions under a trained lawyer called a Recorder, and a Stipendiary Magistrate for a practically similar purpose. The whole judicial organization of the town is subject to the supervisory control of the High Court of Justice. CHAPTER IX LIBERTY OF THK SUBJF.CT § 63. The freedom of the individual is the pecuHar boast of Personal the English people. Other nations endow their citizens with ''^^erty. political privileges as extensive as our own : but few possess in the same degree that immunity from petty official tyranny which makes daily life in the British dominions freer than perhaps anywhere else in the civilized world. To the subjects of many European governments this personal liberty is guaranteed by an article of the written constitution under which they live. But the English constitution rests on no such written basis ; and consequently this right, 'which consists in the power of locomotion, of changing situation, of moving one's person to whatsoever place one's inclination may direct, without im- prisonment or restraint, unless by due course of law,' V.t7.y/j- ' Stephen's noivhere in English law as a stated prificiple, except perhaps in ^""y"^'^- a well-known article of the Great Charter. In other words, it (nth ed.), is secured indirectly, ' by the strict maintenance of the prin- i- i49- ciple that no man can be arrested or imprisoned except . . . under some legal warrant or authority, and ... by the pro- vision of adequate legal means for the enforcement of this principle.'" It is not, however, to be supposed that mediaeval ~ Dicey, England, except perhaps in degree, was more exempt than '95- other nations from that ' ferocity of the times and the occa- sional despotism of jealous or usurping princes ' which over- rode all securities for liberty and, in too many countries, made government only another name for systematized oppression. A contempt for even the legal rights of individuals is no un- common mark of that kind of rule by a despot or a privileged class, which was most prevalent in the Middle Ages. Kings, nobles, and even Parliament when it took upon itself judicial 435 436 ENGLISH CONSTITUTIONAL HISTORY Secured by issue of writs. 1 S. C. 301 § 36. 6 Edw. I, 1278. 13 Ed)v. I, 1285. Writ of Habeas Corpus ; functions, only too frequently sacrificed the claims of in- dividual right to their own interests or desires. And yet, in England at least, the means of securing this individual liberty of the freeman were coeval with the Common law. How it was secured in early times, except as against actual enslave- ment, is not very clear ; but with the introduction of the system of procedure by writs, methods of redress against unlawful detention were abundantly provided. No less than four such writs seem to have been framed. The first was (a) the writ ife odio et atia, which directed the sheriff to inquire whether a prisoner accused of murder was committed upon reasonable suspicion or only propter odhwi et aiia??i, that is, through malice ; in order that in the latter case he might be admitted to bail, and so await his trial at the hands of the king's justices on their next eyre. But this writ was only issuable through royal favour, and John took advantage of this fact to demand large sums of money for the privilege. Magna Carta provides that this, which it calls ' the writ of inquest of life or Umb,' shall be given free without power of refusal, that is, it makes it into a writ 'of course.'^ The application of the writ was restricted by the Statute of Gloucester : but the Statute of Westminster II again removed all power of denial. It was abolished in 1354; 'but,' says Blackstone, 'as the Statute 42 Edw. Ill repealed all the statutes then in being, contrary to the Great Charter, Sir Edward Coke is of opinion that the writ de odio et atia was thereby revived.' (b) The writ of mainprize or manucaptio commanded the sheriff to take sureties, called mainpernors, for the appearance of the prisoner and to set him at liberty ; while {c) the writ de homiiie replegiando bade the same official to replevy or repledge, that is, deliver a prisoner from custody ' in the same manner that chattels taken in distress may be replevied,' on bail being given for his subsequent appearance. But all these remedies fell into disuse or were superseded by the still existing {d) writ of Habeas Corpus. Of this there seem to have been no less than five variations the chief of which was the Habeas Corpus ad subjiciendum. This form of the writ is not of privilege, but of right existing at Common law, and, therefore, cannot ordinarily be withheld. / Originally it might be demanded from the Court of King's Bench by LIBERTY OF THE SUBJECT 437 a prisoner or his friends, and could be addressed to any person, wliether an authorized gaoler or not, who detained another person in custody, commanding such detainer 'to produce the body of the prisoner with the day and cause of his caption and detention, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall direct.' This might seem an effectual method for ensuring a prisoner against wrongful or arbitrarily prolonged detention. But, despite its apparent simplicity, it was many centuries before the full and efficient working of the writ was finally secured. In the first place, on a statement of a prisoner's case by him- how self or his friends, the writ as being of right could not ^^^"^"• ordinarily be Avithheld by a judge; but Sir Edward Coke, when Chief Justice in 1616, denied it to a man imprisoned for piracy, whose own statement seemed to establish the truth of the charge against him. But there was a much more im- portant class of cases which threatened altogether to anni- hilate the action of the writ. The deeds or misdeeds of an English official, whether. Prime Minister or parish constable, are amenable to the ordinary law of the land, administered by the ordinary courts ; and the plea of official duty affords no excuse for the performance of an otherwise illegal act. But in France and many other nations of the European continent, members of the administration are protected in the discharge of their official duties by a particular law administered by special courts, which legalizes acts unlawful for a private in- dividual. The disadvantages of the English system for enabling the government by prompt action to check at its beginning a threatened disturbance of public order, have often been pointed out. Here it is necessary to notice that the English government has not always acquiesced in this interpretation of the law. The strong executive of the Tudors and early Stuarts was based upon a theory of the law similar to that of the French droit administratif? u'he formulated Stuart ' Dicey, theory, upheld by the decision of the judges, as to the extra- 326-9. ordinary power of the prerogative, or in other words, the discretionary power of the Crown, claimed the right of com- mitting individuals to prison and retaining them there without the need of any further return to a writ of Habeas Corpus by the gaoler than that the prisoner was retained by special 43S . ENGLISH CONSTITUTIONAL HISTORY command of the king, per speciale rnandatum regis. But this claim to a power of practically indefinite imprisonment was contrary not only to the spirit of Magna Carta which provided that no free man should be taken or imprisoned or otherwise penally dealt \Vith unless by lawful judgement of his peers or ' S. C. 301, by the law of the land ;^ but also to the letter of a more §•59- explicit Act of 135 1-2 which, aiming directly at the exercise j^j ^ ^^' of extraordinary powers by the Council, enacted that no one c. 4. ' should be taken by petition or suggestion to the king unless it be by indictment or presentment or by writ original at the Common law. / The exercise of this power of commitment even by a single councillor, led to a formal complaint from the judges in 1591 addressed to the Chancellor, Sir Christopher Hatton, and the Treasurer, Lord Burleigh ; which, however, while enumerating examples of illegal commitments, acknow- ledges that a com.mittal ' by Her Majesty's special command- ment, or by order from the Council board, or for treason touching Her Majesty's person,' is sufficient return to a writ of Habeas Corpus. It is clear that, in this acknowledgement of the power of the Council, the judges were only contem- plating the alternativex)f bailing a prisoner or of remanding him back to prison. ( But the Council did not hesitate to wield this power in a way that amounted to an entire refusal of trial to a prisoner committed /^r speciale itiandatum regis\ The admission of Chief Justice Anderson and his fellow judges in 1 59 1 was used to justify the decision of the judges in the Darnell's celebrated case of Darnell or the Five Knights. A number of Case. persons had been imprisoned by the Privy Council for refusal " ^^" to contribute to a forced loan : five of them, applied to the Court of King's Bench for a writ of Habeas Corpus ; the gaoler made the return that they were confined per speciale mandatmn regis., and the case of one of the prisoners, named Darnell, was argued out before the assembled judges. The plaintiff's counsel did not deny the right of the Council to commit to prison ; but they asserted that the cause of commitment must be named in the warrant in order that the Court might decide whether the charge was one in which bail was allowed or not ; whereas the prisoner had been committed merely at the special command of the king. It was defended by the Attorney-General on the ground that reasons of state might LIBERTY OF THE SUBJECT 439 make a definite charge inexpedient in political cases. This, however, had nothing to do with the matter. It was well known that the real cause of imprisonment was not the neces- sity of collecting scattered evidence of some deep conspiracy, but the refusal of the prisoners to contribute to a loan the levy of which they regarded as illegal and the legality of which the king dared not put to the test before the common- law courts. This the judges sufficiently recognized ; for, while giving judgement for the Crown, they refused to leave on record the assertion that the king need not specify the cause of commitment.^ As a direct answer to this de- 1 Gardiner, cision the Petition of Right, rehearsing that, in violation of vi. 213-17. Magna Carta and of the Statute 25 Edw. Ill, certain of the 1628. king's subjects had been detained by the king's special com- mand alone, prayed that for the future no such imprisonment should be allowed.'^ Yet this very definite prohibition did " Gardiner, not prevent the committal of Sir John Eliot, Selden and ^''''^^• others, at the special command of the king, on the general . ' charge of ' notable contempts and stirring up sedition against the king and government ' ; nor did it even prevent the judges from delaying to find it bailable and thereby prolonging the imprisonment for two terms and a long vacation. Final ly, the Act of the Long Parliament which abolished the Star 16 Car. I. Chamber, provided that every one committed by the king ^- ^°' ^^4i- himself or by the Council collectively or individually, could claim from the King's Bench or Common Pleas, without delay upon any pretence whatsoever, a writ of Habeas Corpus ; and that within three days the Court should determine upon the legality of the commitment and act accordingly.'' •' Gardiner, But if a direct refusal of the writ, even to important prisoners ^^- ''^^- "^" of state, was thus forbidden, there were many ways which had always existed, of evading the action of the writ. Early attempts of the Commons under Charles II to remedy some of these defects, failed through the opposition of the Lords ; but matters were brought to a head by the case of Jefikcs, 1 '. ' a London citizen committed by the King in Council for what the government chose to interpret as a seditious speech at the Guildhall. So many difficulties were thrown in the way, including the refusal of the Lord Chancellor and the Lord (^hief Justice to grant a writ in vacation, that it was many 440 ENGLISH CONSTITUTIONAL HISTORY 1 Hallam, weeks before the prisoner was finally released on bail.' Three 111. lo-ii. years later the efforts of Lord Shaftesbury procured the Habeas passing of the Habeas Corpus Act, l679) which embodied in a Act^^evQ statute the right hitherto based but imperfectly upon Common law, and remedied some of the most important defects in the administration of that law. Thus (i) although practically no excuse justified a judge in refusing a writ, the detainer, whether a lawful gaoler or not, was not bound to produce his prisoner until a second (called alias) and even a third writ (called piuries) had been issued. The statute enacted as a remedy that every prisoner on a criminal charge, except one of treason or felony, could obtain a writ, and must be produced for trial within twenty days of its issue ; while no person once delivered by habeas corpus should be recommitted for the same offence. This was enforced by heavy penalties both from gaoler and judge. But further, since a person charged with treason or felony would still be left at the mercy of the judge who had no right to inquire into the truth of the charge made against him, a subsequent clause of the statute provided that every prisoner on such charge must be tried at the next gaol delivery or else released on bail unless the witnesses for the Crown could not be produced in time ; while, in any case, if still untried after the second gaol delivery he could claim his discharge. (2) \ second grave defect in the working of the writ had been made clear in the case of Jenkes. No court, except the King's Bench, was accustomed to issue these writs, and it was a question whether during vacation, which comprised a large portion of the year, they could be issued at all. The statute met this difficulty by providing that all the superior courts might issue the writs ; while in vaca- tion a single judge of any such court was armed with the same authority. (3) A third set of provisions was aimed against a custom which had become common under Lord Clarendon, though not unknown to his predecessors, of trans- porting prisoners to the Channel Islands or elsewhere out of the operation of the law. The Act forbade, except under certain specified circumstances, the transference of a prisoner - .S". C. 5'7- to Scotland, Ireland, Jersey, Guernsey, Tangiers or any place 1 lillam beyond the seas ; while it provided that the writ should run in the iii. 1 2- 14. counties palatine, cinque ports and other privileged places.- LIBERTV OK THE SUBJECT 44I But, with all its merits, this Act was far from conclusive. Indeed, the history of the Habeas Corpus Acts has been instanced as an apt illustration of ' the predominant attention paid under the English Constitution to remedies, that is, to modes of procedure ... by which to turn a merely nominal into an effective or real right.' ^ For ' they are intended . . . ' I^icey, simply to meet actual and experienced difficulties ' ; and con- "°^' sequently, it is not to be wondered at that a century and a half elapsed before the machinery for securing protection against unlawful imprisonment was finally perfected. Thus {a) the lis defects Act of 1679 fixed no limit to the amount of bail that might be '^'^'"^ '^ demanded. This was remedied, by the clause of the Bill of Rights in 1689, which declared that 'excessive bail ought not to be required, the precise am.ount being left to the discretion and honourable motives of the judge on a review of the charge and the rank of the prisoner. More lasting defects were {h) the application of the writ merely to commitments on criminal charges, and {c) the absence of any provision against the allegation of a false charge or, as it was technically called, a false return, by the gaoler. These were corrected by an Act of 1816, which extended the action of the writ to non- 56 Geo. III. criminal charges and authorized the judges to examine into ^- ^°°- the truth of the facts alleged in the return "to the writ with a view to bailing, remanding, or even discharging the prisoner.- ; Hallam, It should be noticed, in conclusion, that by a subsequent Act 2'- ^'^26^' the action of the writ outsid^e England has been limited to yj^.^^ ^^ 20. those colonies or foreign dependencies of the Crown whose courts have no authority to issue the writs or to ensure their execution. But the writ of Habeas Corpus is important not merely for Its Con- the efficacy with which it secures the liberty of the subject. ^,'^'^\"o\'.°"^^ It ' determines the whole relation of the judicial body towards the ance. executive.'^ For, since all officials from the highest to the '^ Dicey, lowest are amenable to the ordinary law of the land, the ^o^- duty of issuing and enforcing this writ arms the judges with the power of reviewing and hampering even to the point of vetoing the action of the executive ; for they may fail to find such action in accordance with the letter of the law. Two illustrations of this position must not be omitted. In the first, place, notwithstanding all their claims of extra-legal power, 442 ENGLISH CONSTITUTIONAL HISTORY the Tudors and Stuarts were not so blind to the general reverence of Englishmen for their Common law as to refuse the assistance of the lawyers ; and the conflicts of the seven- teenth century over the position of the judges were due to the fact that, while the reforming Royalists such as Bacon and Wentworth regarded them as the best instruments of conservative innovation, the parliamentary party held them as the exponents and defenders of the ancient liberties en- shrined in the Common law. Thus the question of judicial indepetideiice became part of the larger question of the mainten- ance of national rights, and even an inquiry into so technical a subject as the proper return to a writ of Habeas Corpus contained in itself an assertion, on the one side, of the need of a strong executive, and, on the other, of the permanent importance of the maintenance of popular rights. A second illustration of the connection between the executive and the judicial bench may be drawn from the procedure in the so- called Suspejision of the Habeas Corpus Act. In times of political danger it has been found expedient to pass temporary, generally annual, Acts suspending the action of the writ of Habeas Corpus in the case of persons charged with certain specified crimes such as treasonable practices. It is important to understand that there is never atiytJmig like a general suspension of the action of the writ in all cases. Such temporary suspensions were fairly frequent in the troubled times which succeeded the Revolution of 1688, and again in the Rebellions of 17 15 and 1745, and during the intermediate Jacobite conspiracy of 1722, — in all about nine times up to the last of these dates. For the next fifty years no measures were taken to suspend the operation of the law; but then, in the apprehensions occasioned by the course of the French Revolution, Parliament under the guidance of Pitt took the hitherto unprecedented step of renewing for eight years in 1794-1S01. succession an Act which withdrew the benefit of the writ from all those charged with conspiring against the person Erskine and government of the king.^ But the power of the judica- May, ill. ^^m-g j^ restraint of the executive was never more triumphantly acknowledged than in the means taken by the ministers of the day to defend themselves against any legal liabilities which they might have incurred during the suspension. For LIliERTV OF THE SUBJECT 443 tlie withdrawal of the application of the writs to persons charged with certain crimes does not preclude persons falsely charged from redress at the hands of their accusers when the suspension has been removed. On the expiration of this Act in 1 80 1, and again on the occasion of the next suspension in 1817,' the executive sought to protect itself by procuring from 1 Krskine Parliament Acts of Indemnity, that is to say, ' retrospective Miiy, iii. statutes which free persons who have broken the law from ' ■'7* responsibility for its breach, and thus make lawful acts which when they were committed were unlawful.'- The limitation - Dicey, to this otherwise formidable and irresponsible power of the -'°- executive, which equals, if it does not surpass that wielded by the most despotic of the Tudors or Stuarts, is found in the authorization of Parliament, a body ever jealous for the maintenance of individual liberty. Since 1817 there has been no suspension of the Habeas Corpus Act in England, although .., ^^ ^^ unfortunately the history of Ireland has a different tale toAkine May, j;g]l_3 ,_ -^,_ / iii . 19 note. § 64. But besides the attempts to set at nought or to evade Methods of the action of the writ of Habeas Corpus, there were other ^j^° jj^^^. methods of undermining the liberty of the individual, ' rem- of the nants,' as they have been called, ' of a jurisprudence which Subject. had favoured prerogative at the expense of liberty.''* Among ^'"^Ki'?^ such was a po\\*er, employed by the Secretary of State and " ^' " ' based upon certain parts of the Acts for the regulation of the general press, by which gene7-al warrants were issued for the appre- warrants ; hension of the unnamed authors, printers and publishers of a particular obscene or seditious libel. This practice grew up with the Acts after the Restoration, but survived the expira- tion of the Acts themselves in 1695. It w^as a very ready means for the exercise of nmch petty tyranny both in the seizure of persons and of papers ; but it was continued, inadvertently perhaps or, more probably, on the ground of usage, until the whole question was raised both in the law courts and in Parlia- ment by a series of cases, the chief of which are associated with the name of Wilkes. In 1763, for the punishment of those who had so freely criticised the utterances of the govern- ment in No. 45 of the 'North Briton,' the Secretary of State Case of (Lord Halifax) issued a general 'warrant for the apprehension ^^•''^'^■''• of the authors, printers and publishers, together with their 444 ENGLISH CONSTITUTIONAL HISTORY papers, the execution of which was personally superintended by Wood, the Under-Secretary. Under this warrant forty-nine persons were arrested, including the editor, John Wilkes, and a printer named Leach, but including also many perfectly innocent persons ; and the whole proceedings were conducted with much arbitrary violence. The first action which resulted was that of several printers who had been arrested, against the messengers by whom the arrest was made, in which Lord Chief Justice Pratt, better known by his later title of Lord Camden, held that the warrant was illegal, and the printers obtained damages. IVilkes himself brought actions against both ] Lecky, Lord Halifax and Mr. Wood. ^ From the latter a jury at the "!• 73-5- direction of the same Judge gave Wilkes ;^8oo damages ; and when in 1769 his action against Lord Halifax was brought to an - Erskine end, no less than ^4,000 damages were awarded.- Meanwhile, a>, 111. jj^ 1763, the printer Leach had also obtained a verdict with damages against one of the messengers named Money ; and, on appeal to the Court of King's Bench, the judgement was upheld '^ Ibid.\\\. by Lord Mansfield.^ Finally, in 1765, in the case oi E/ifick ^' ' V. Carrtngto?i, Lord Camden condemned the issue by the Secre- tary of State of a general search-warrant which placed all the books and papers of a specified individual at the mercy of the * Ihid.'m. messengers who conducted the search."* From the law courts 7 "9- the matter was taken into Parliament ; and the decisions of Lord Camden in the Common Pleas and Lord Mansfield in 1766. the King's Bench were followed by resolutions of the House of Commons, promoted by the Ministry of Lord Rockingham, which condemned as illegal general warrants whether for the seizure of persons or of papers. The refusal of the Lords to concur in a Declaratory Bill to this effect was of no moment in "' l/>id. iii. the light of the unanimous decisions of the law courts."' ^"'°" For some time the state of certain departments of the law itself can only be described as a direct encouragement of gross violations of personal liberty. In cases where contempt of court had been committed, not merely by disrespect such as could be atoned for by an apology, but by failure to comply with their decrees through inability to pay the costs of an un- successful suit, the courts of equity thought nothing of relegating prisonment ^"^'^ unfortunate litigants to imprisonment for life. Lideed, of debtors; the casc of debtors in general was such as to encourage a con- LII'.KRTV or THE SUBJECT 445 siderable amount of petty tyranny. In the eyes of the law the person of the debtor was the property of his creditor until the debt was discharged ; and the debtor, therefore, however solvent, was liable at any moment to arrest and detention in a prison whose horrors have become traditional. There was no distinction between the fraudulent and the unfortunate debtor; and both alike, if insolvent, were condemned to a life- long imprisonment. From time to time in the course of the eighteenth century several small measures of relief were passed ; but the first general measure really dealing with the subject was the Insolvent Debtors' Act of 1813, which distinguished 53000. III. between crime and misfortune by allowing an insolvent debtor c- 102. to get his discharge by giving an account of all his debts and property. But until 1827 Crown debtors were exempted from the operation of this Act. In 1838, arrest for debt, which had been limited by previous Acts, was abolished in all but a few 1 Erskine specified cases, and the lands of the debtor were for the first ^^^y, iii. time allowed to satisfy the claim. It was a natural corollary to ^^'35- the distinction recognized in 18 13 that, by the Bankruptcy Act ^\^ c^ n^ of 1 86 1, fraudulent debt was treated as a crime. ^ § 221. And if the law treated English citizens so harshly, it was not (c) negro likely that aliens would find much favour in its eyes. The ^^^^^^7 ; institution of negro slavery had never been recognized by English law ; although for the colonies or plantations, as they were commonly called, it had been legalized by several statutes. Although more than one English Judge had pro- nounced a pious opinion in favour of the freedom of a negro on English soil, yet the status of a colonial slave in England had never been called in question until the case of James Sommer- Sommer- sett in 1772. He was a negro who was arrested for refusing to ^^'''^ Ca-^e. return to his master's service. A writ of Habeas Corpus was obtained and in the discussion of the case before the Court of King's Bench, Lord Mansfield, ignoring arguments drawn from the legal existence of villenage in England, pronounced definitely that slavery in England was illegal. But despite the efforts of Wilberforce and his friends, and the promises of Pitt, the slave trade and the institution of slavery continued to be recognized in our colonies, until the unceasing efforts of Charles James Fox were crowned with a well-merited 1807, success w'hich he himself did not live to see, and the trade 446 ENGLISH CONSTITUTIONAL HISTORY ' Erskine in negroes was absolutely forbidden to subjects of the British May, iii. Crown.' ■^ With regard io foreign settlers, who came to England of their , „ ■ °^^'" ^'^^^ ^'^^' foreign merchants and Jews were under the tions on special protection of the Crown, which exacted heavy tolls foreign from them as a licence to trade, but at the same time granted them extensive privileges. From Edward I to the Common- wealth the Jews as a body had disappeared from England ; but the policy of Edward III had encouraged the settlement of Flemish artisans, and from the time of the Reformation there was a constant stream of religious and political fugitives into the country, who brought with them some of the best blood • ^^ L^^KV' and industry of France and the Netherlands.- As the Crown 1. 188-192. , , , -^ , . , . „ ^ . had extended an especial protection over all foreigners, so it reserved to itself the right of expelling them from the country ; •but this power was not exercised after the early years of Eliza- beth's reign. During the period of their residence in England all foreigners enjoyed the same personal liberty as British subjects : but by the Common law they were unable to acquire land, to hold any public office or even to exercise any civil rights. The only methods by which they could become English subjects were by denization under the king's letters patent, or by naturalization by Act of Parliament ; and even those who did not undergo either of these processes were given a safe asylum against the persecutions of foreign governments. The first departure from these generous principles of treatment was due to the alarm of the French Revolution. In 1793 the Alien Act, which remained more or less in force until 1826 and was renewed for a short period in 1848, placed foreigners under a strict surveillance, and required that they should be registered and should live in certain specified districts. Yet even at this period the general principle of repudiating the dictation of foreign governments as to our conduct towards dwellers on English soil was maintained, and Napoleon's arro- gant demand that all adherents of the old French monarchy should be removed out of British dominions was met with a flat refusal. In 1844 a further step was taken in the passing of Mr Hutt's Naturalization Act, which enabled aliens, on a certificate from the Home Secretary or on taking the oath of allegiance, to acquire all the rights of a natural born LIBERTY OF THE SUBJECT 447 subject sliort of eligibility for membership of Parliament or the Privy Council. This has been further amended and extended by the Naturalization Act of 1870. Finally, the protection afforded to foreigners has been somewhat modified by the signature of E\tradition treaties with the United States in 1842, with France in 1843 and subsequently with most of the civilized nations of the world, by which each of the contracting parties agrees to surrender to the other, criminals of that other nation found within its jurisdiction. Even during the ex'citement caused by the arrogant demands of Napoleon, the English government did not refuse to satisfy the latter's complaints of the attacks made on him by the press, but prosecuted for libel on Napoleon a refugee named Jean Peltier. Despite Mackin- tosh's able defence, he was pronounced guilty, though the renewal of war with France precluded the necessity of calling him u]) for judgement.^ England has, however, steadily 1 Erskine maintained her policy of granting an asylum to political refugees ^^^.y, ii, ns such, which, despite occasional abuse, such as the plotting •'•^•^"4- of the Orsini conspiracy against the French government in 1858, has brought to our shores and domiciled among us, often for long years together, most of the advocates of indi- '^ Ibid. iii. vidual liberty and self-government.- 5o-9- § 65. There has been occasion already to notice the simi- Freedom larity between the ideas which animate the governments of ?|^°P'"!°"- continental Europe and those which the Tudor and early l-epression. Stuart sovereigns endeavoured to realize. The parallel extends to the duties of the administratioti towards the exp?-ession of opitiion. The Tudors and their imitators, the first Stuart sovereigns, no less than the French or Belgian government of to-day, considered in all good faith that it Avas the duty of the administration to regulate ' the utterance and formation of opinion ' whether religious or otherwise. It was this con- sideration which in their opinion justified them in the main- tenance of institutions and of a system which, if it could have been carried out, bade fair to cut off all intellectual advance, and was, even in its imperfections, a formidable engine of tyranny over individuals and classes. The system was centred in that judicial committee which has gained undying infamv as the Star Chaiiiber. This body exercised a supervision not ^f ^t " only over great offenders who might have set at defiance the Chamber; 44^ ENGLISH CONSTITUTIONAL HISTORY ^ For in- stances, vide Dicey's Privy Council, 105-I12, and the authorities there quoted. 1641. {li) use of spies and informers ; - Erskine May, iii. 39-44- ordinary Courts of Common law, but even over the petty details of private life which affected no one but the parties concerned. Indeed, it carried the principle of paternal govern- ment to a ridiculous excess, and arrogated to itself the duties of a public censor.^ It will easily be seen that, however excellent was the intention which underlay such action, the temptation and opportunities of individual oppression were as irresistible as they were manifold. The exaction of heavy fines often for what were little better than imaginary offences ; the arbitrary power of arrest which was exercised by each Councillor as well as by the whole body ; the intolerable interferences in private quarrels whether concerning persons or property ; the methods of procedure by personal examination of the prisoner and by torture, both equally alien to the spirit and practice of the Common law, all combined to render the abolition of the Star Chamber one of the best possible guarantees for the assurance of individual liberty. But if, after the downfall of this instrument of oppression, the executive did not still consider itself in the same degree as heretofore, responsible for the guidance and control of popular opinion ; yet it still deemed necessary certain measures of precaution which, though never to this day entirely dis- pensed with, have diminished with time, increased stability, and the removal of anticipations of treasonable outbreaks. The most arbitrary proceedings of the Star Chamber were based upon the evidence, — if not of written papers often of a private nature, or of common rumour, — at best of spies and infonners who were not confronted with the prisoner whom their charges were to condemn. But the disappearance of that tribunal, followed as it was by a long period of political unrest, did not allow government, even if such had been its wish, to dispense with the aid of these useful auxiliaries. The system continued until the present century, when the trials of those who took part in the disturbances of the period 181 7- 1820 furnished proofs that the conspirators had actually been urged to violence by the emissaries of the government, and the ministers who had used them incurred an odium due rather to the system than to their particular use of it ; while the formation of a body of detective police has done away with the necessity of employing such agents.- LIBERTY OF THE SUBJECT 449 The organization of the Post Office placed in the hands of an unscrupulous government another necessary but tempting means of interfering with individual freedom. Perhaps it was not unnatural that the State in its capacity of post-master should object to facilitate the correspondence of those who were plotting its destruction ; and from the very first the foreign mails seem to have been carefully searched. Cromwell by an Act, and Charles II. by a proclamation, reserved to the representative of the government the right of opening letters ; {c) the and finally, by an Act of Anne's reign, which has been con- power of firmed by later statutes, the Secretary of State was armed with pl^jy^t"^ a power of issuing warrants for this purpose. Nor was the power letters ; suffered to remain idle; and while it was exercised for public purposes in 1722, 1745, and at other times of political danger, statesmen in office were not above making use of their privilege to incriminate their political opponents. In 1844 the avowal of the Secretary of State, Sir James Graham, that he had used this power, produced a great uproar throughout the country, which he only quieted by proposing the appointment of a secret committee to examine into the law on the matter. The committee, which contained many of the leading states- men of both political parties, not only entirely justified Sir James Graham's conduct, but also recommended no alteration i Erskine of the law. The Secretary of State, therefore, to this day May, iii. retains his former authority to open letters.^ 44-49- But in the sixteenth and seventeenth centuries, by far the [d) censor- most important method of influencing public opinion was the ship of the strict censorship which was exercised over all printed matter, f"^*^^^ ' At first this censorship was placed in the hands of the Church ; but after the Reformation it became part of the prerogative of the Crown, who appointed the licenser and granted a monopoly of printing to London and in a restricted measure '- Proihero, to the two Universities, under the supervision of the Stationers' 168-172. _ Company, the Archbishop of Canterbury and the Bishop of 2^8.0™''* London.- Under Elizabeth special statutes armed the judges ■> 23 Eliz. with the power, through the verdicts of subservient juries, c 2. of punishing the publication of anything approaching to the Ty^go '^°' expression of seditious opinions.^ Under these statutes 4 Hallam sentence of death was passed upon Udall (1591) for an alleged i- 206. libel on the bishops;"^ B arro7v a,nd Greenwood {x^Zd) for the ^'^°^^^'^°' 2 G 450 ENGLISH CONSTITUTIONAL HISTORY ' Prothero, 223-4. - Hallam, i. 206. ' Ibid. ii. 37. Gardiner, vii. 144- * Ibid. vii. 329-334. ^ Ibid. viii. 226-233. ^ Ibid. viii. 248-9. " Prothero, 394- ^ Hallam, iii. 2-5. ® Ibid. iii. 166-8. Erskine, May, ii. 243- («) stamp duties ; 10 Anne, c. 19. i» Erskine May, ii. 245- » Ibid. ii. 359- writing of seditious books ; ^ and Penry for a suspected con- nection witli the Martin Marprelate tracts.- But since the supervision of all opinion, whether spokfen or written, was part of the royal prerogative, not least among the duties of the Star Chamber was its work in the suppression of all unlicensed political discussion. Under the first two Stuarts the opposition excited by their misgovernment kept the members active. The severe punishments of heavy fines, mutilation, whipping, im- prisonment or banishment, which were inflicted for various Puritan publications upon Leighton (1630),^ Frvmie,'^ Burton, Bastwick (1637),'^ and Lilburne (1638),'' were merely specimens of the exercise of the prerogative of the Crown through the Council in this respect. The actual restrictions on the liberty of printing were drawn tighter by an ordinance of the Council.'' But the overthrow of the Star Chamber did not mend matters ; and the severe restrictions imposed by the Long Parliament upon printing, produced the strong plea for freedom in Milton's ' Areopagitica.' After the Restoration the Licensing Act of 1662 placed the whole control of the press in the hands of tlie government, and the regulations were very similar to those which had been in vogue under Elizabeth. From 1679 to 1685 the Act was suffered to lapse; but a decision of the judges armed the Crown with precisely analogous powers at common law.'^ The Act, however, was revived on James IPs accession, and lasted until 1695, when it was finally suffered to expire; and with its expiration 'a censorship of the press was for ever renounced by the law of England.'-' But a theoretical freedom is compatible with very serious practical restrictions ; and the direct control over the press was succeeded by such serious impediments to free criticism and expression of opinion as were offered by the imposition of a stamp duty on newspapers and advertisements, and a vigorous execution of the laws of libel. The first Stamp Act of this kind was imposed in 1712 and was found so successful both as a means of revenue and as a check on the publication of cheap papers, that by the end of George IPs reign the amount of the duty had been quadrupled.^*' In 181 9, by one of the 'Six Acts,' the duty was extended to leaflets and tracts which had hitherto been considered too slight to be called newspapers, but which were widely circulated." But the Reform Act of 1832 was LIIJERTV OF THE SUBJECT 45 1 naturally followed by a different attitude on the part of the administration towards fugitive criticism. 'I'he duty on ad- vertisements was reduced in 1833 and abolished in 1853; and a similar fate befell the stamp on newspapers in 1836 and , I855 respectively. The last hindrance to the multiplication jvjay, ii. of cheap newspapers was swept away in the abolition of the 3^0-2. duty on paper in 186 1.' Perhaps a more serious impediment to freedom of dis- (/) law of cussion was really formed by the partial administration and the iniquitous interpi-etation of the Latv of Libel. Under William III and Anne party feeling ran so high that any one who insulted the dominant party was treated as a libeller, and the whole influence of the government was used to procure his punishment by a sentence of the law courts. The effect of so potent a weapon at a time when political discussion was unusually active can easily be imagined. Under the first two Georges the contempt of a government which had more efficacious means at its disposal, caused it to treat the libellous utterances of its opponents in the press with unusual tolerance. But meanwhile, the judges had been maturing that perverted reading of the law which was not slow to declare itself on the increase of political discussion which marked the accession of George III, and in support of a government which deter- mined to gag the expression of adverse opinion. This inter- pretation, gradually evolved as circumstances called it forth, consisted of three propositions, each of which may be identified for convenience sake with the particular case which established it. Although the chief interest of the trials which arose out of the publication" of No. 45 of the 'North Briton' turned rather on the question of the legality of general warrants ; yet in the trial of the printers Lord Mansfield had laid it down (i) that it was the province of the Judge alone to deter mifie the ■criminality of a liheL' This left to the jury merely the deter- 2 Hallam, mination of the comparatively immaterial issue of the fact of ^"- ^^9. its publication, which in the majority of cases would not be ^\17^^ disputed. This reading of the law was accepted and enforced 253. by all the judges with the sole exception of Lord Camden. The juries, however, not unnaturally resented an interpretation which practically removed the sole remaining security for freedom of the press ; and in indirect ways they endeavoured 253-260. 45- ENGLISH CONSTITUTIONAL HISTORY 1770. to escape from it. Thus in the trial of IVoodfall, the original publisher in the ' Public Advertiser ' of Junius' celebrated 'Letter to the King,' the jury, with a clever perception of the real meaning of the judge's charge and to his infinite annoyance, found the defendant ' guilty of printing and publishing only.' In the contemporaneous case of Miller, on the same charge, the jury practically challenged Lord Mansfield's doctrine which transferred the trial from the jury to the judge, by a verdict of ' not guilty.' In fact, this interpretation of the law was strenuously combated both in Parliament by such authorities as Lords Chatham and Camden, Sir G. Savile and Burke ; and in the law courts by Erskine in his defences of the Dean of 1 Erskine St. Asaph (1779) and of Stockdale (1789).^ But common ^^^l\f^^ sense and equity alike were bound to triumph. In his earlier days Charles James Fox had defended Lord Mansfield's interpretation. But in 1792, chiefly by his advocacy and despite the opposition of the majority of the judges and leading exponents of the law, the Libel Act was passed. By this the right of the jury to determine in a case of libel upon the guilt of the whole matter was distinctly affirmed ; and a dangerous weapon of attack upon the liberty of the subject in the free - Ibid. ii. and legitimate expression of opinion, was removed." But if 260-263. this was the most insidious of the judicial interpretations of the law, the other two were no less subversive of the real spirit of individual liberty. In 1731, on the trial of a certain Franklin for a libel in the ' Craftsman,' the judge had strongly ruled (2) that falsehood ivas not essential to the guilt of a libel, and had refused to allow the production of any evidence tending to prove the truth of the statements which formed the * Hallam, ground of the accusation.'' This was merely to bring into ^^9 conformity with the Common law the action of the judges since the Revolution, which condemned the expression of any opinion adverse to the government of the day. Again, in the 1770. case oi Almofi, a bookseller who was tried for selling a reprint of Junius' ' Letter to the King,' Lord Mansfield added to his other interpretation a proposition (3) that a publisher was criminally responsible for the acts of his servants ; and this was soon interpreted to mean that the publication of a libel by Lrskine ^ servant was conclusive proof of the connivance of the May, 11. 1 T^ , 1 • ■ 1 1 T 252 master.'' Both these propositions were accepted as the reading note. LIBERTY OF THE SUl^JECT 453 of the law for sixty years after the first interpretation had been exploded by the Libel Act. The period which followed 1792 was one of strong reaction ; and the repressive measures of a government which was not unnaturally but, as the event proved, was unnecessarily alarmed at the threatened outbreak of popular opinions, for a time at least suspended many of those safeguards of individual liberty which had been already secured. Thus it was only in 1843 that Lord Campbell's Libel Act 6 & 7 Vict, allowed a defendant to plead in excuse the truth of an un- ^- 96- favourable criticism and its publication for the public benefit \ and a publisher to prove the publication of a libel without his consent. The liberty of the press was thus placed upon its present footing. Unlike the law of many European nations, in England freedom of discussion does not rest upon the guarantee of an article in the constitution. There is no censorship of the press ; and misuse of the press is punished by the ordinary courts. Thus such punishment is only inflicted for statements which shall be proved to be a breach of the law. In other words, the law of the press is merely part of the law of libel : the offence consists in its publication, and all concerned — whether writer, publisher, or printer — are individually and equally liable. 'Freedom of discussion in England,' it has been pithily said, ' is little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think ^ Dicey, it expedient should be said or written.' ^ ^^^' % 66. Until comparatively recent times, one of the most [g) dc- formidable menaces to individual liberty came from the con- P^'"dence nection between the executive and the judicial body. The judges on necessity for a separation between these two powers was so little ihe Crown; understood, that it was by no means uncommon for an official, whether a member of the Council or a sheriff, to judge an offender against an order which he had himself issued. In the eyes of a bureaucratic government, this method had the advantage of ensuring for its members immunity from any legal consequences which their arbitrary acts might have incurred. And even the establishment of a more highly organized system of administration has only very gradually recognized the distinction between the executive and the judicial powers. The Lord Chancellor still forms part of every 454 ENGLISH CONSTITUTIONAL fllSTORY Cabinet : until little more than a century ago the C'hancellor of the Exchequer from time to time exercised judicial functions : 1806. early in the present century the Lord Chief Justice Ellen- borough was a member of the ministry of 'All the Talents.' The connection of the judges with the House of Lords has been noticed in an earlier chapter. They were regarded as councillors of the Crown in judicial matters, and the defenders of the royal prerogative, or, as Bacon described them, as ' lions under the throne.' Nor was this position questioned until the use which the Stuarts made of them in their attacks upon individual liberty, withdrew from Englishmen the protection of that Common law in which had lain their boasted security from national oppression. Indeed, no small portion of the strength of the Stuarts rested on the fact that, in the majority of cases, the kings had on their side the technical interpretation The judges of the law. Yet, although the decisions of the law courts were under the quite subservient to the wishes of the Crown, there was so much opposition to the Crown among the lawyers, that in 1628 Charles I contemplated excluding them from Parliament, as in 1626 he had excluded some of the country gentry by making them sheriffs. This marked difference in the sentiments of lawyers who were in office and those who were not bound by an official position, is easily accounted for. In its desire to exalt the authority both of the law and of the courts which administer it, the legal profession naturally tends to reverence, perhaps unduly, the supposed source of the law. But while, on the one side, the lawyers, if left to themselves, naturally looked at the king through the medium of the Common law, the judges and legal officials would be as much disposed on their part to regard the law through the medium of the king. To lawyers out of office, then, the law was the first consideration, and its guardianship the most sacred trust of the royal prerogative ; the judges and others who were appointed by the king and held office only during his good pleasure, gave their first thought to the inter- pretation of the royal will through the medium of the existing law, and were thus not infrequently led to give decisions both prejudicial to individual liberty and subversive of the plain teaching of the Common law. Thus it is carefully to be borne in mind that, without the exercise of any undue influence on LIBERTY OF THE SUBJECT 455 the part of the Crown, the judges were prepared to give de- cisions favourable to the prerogative or even to the known wishes of the monarch. Of this there were two noteworthy instances at the very beginning of the quarrel between the Commons and the Crown. In 1606, in the celebrated case of Bate, the judges distinguished between the ordinary and extraordinary prerogative of the Crown, attributed to the latter the right of levying the customs, for the refusal to pay which ' r''"i''"-''"o, the prisoner was being tried, and defined it as a power which Gardiner the Commons could in no way diminish.^ In the case of ii. 5-6. Calvin, or, as it should more rightly be, Colville, in accordance 1608. with the strong desire of the king and in the face of a Parlia- ment unwilling to legislate on the'matter, twelve out of fourteen judges decided that Scotch post-nati, i.e. those born after the accession of James I to the English throne, were natural-born subjects of the English Crown.- This position of the judges - Gardiner, as, in a very real and important sense, servants of the Crown, '• 334. 35^. may be illustrated in three ways, (i) At the present day, the !^g ^'^"' government, when in doubt as to the legality of a proposed course of action, takes the advice of the law officers of the Crown — the Attorney-General and Solicitor-General for the time being. The government of the seventeenth century in a similar predicament consulted the judges. The result was that the judges were often called upon to take part in cases in which they had already pledged themselves by the expression of an extra-judicial opinion. Thus they were called upon to give such opinions, under Elizabeth, as to the legality of commitments by council, with a result already noticed : under James I, as to the legal power and limits of proclamations, when, however, the judges, under the leadership of Coke, pronounced a decision adverse to the Crown : ^ and similarly 3 Gardiner, under Charles I, as to the binding force of the Petition of ii- 104. Right, which they proceeded to explain away ; ■* and as to the ^ ibid. legality of the levy of ship-money, in which they fully upheld ^i- 294- the action of the Crown. ^ (2) Until the time of the Stuarts 5 ibid. the dismissal of a judge for political reasons had been an viii. 94. event of infrequent occurrence, and throughout the reign of Elizabeth not a single instance is to be found. But with the dismissal of Chief Justice Coke by James I in 16 16'"' the 6 //,,-^ judges were given cause to realize that they held office at iii- 25. 456 ENGLISH CONSTITUTIONAL HISTORY ^ Gardiner, vi. 149. 2 Ibid. vii. 113. 3 Ibid. vii. xdl. * Gneist, Const. Hist. ii. 298-302 and notes. * Gardiner, iii. 13-23. the king's good pleasure, nor were they allowed to forget it. In 1626 Chief Justice Crew was dismissed for refusing to acknowledge the legality of forced loans : ^ in 1630 Chief Baron Walter met with a like fate for questioning the law- fulness of actions taken against members of the House of Commons for their conduct in the House;- while in 1634 Chief Justice Heath's opposition to ship-money caused his summary removal from the bench. ^ These are only the more prominent instances of the use of a power which, so long as it existed, was too tempting to leave unemployed. For, the Restoration still left the appointment of the judges entirely in the king's hands ; and the removal of other means of influence made it doubly necessary that Charles II and his brother should have a subservient bench. Thus under Charles II, three Lord Chancellors, Clarendon, Shaftesbury, and Bridgeman (who was, however,,only Lord Keeper), three chief justices, and six judges were dismissed, notoriously for political reasons. James II used his authority even more arbitrarily ; for in three years he had purged the bench of no less than twelve judges who had refused to aid him in his schemes ; and, more thorough in his methods than his predecessor, he set himself to break the power of the gentry by systematically striking off the lists of justices of the peace those who were not sufficiently complaisant to his wishes."* But (3) in the Star Chamber the Tudors and early Stuarts had an instrument for keeping the Courts of Common law in subservience. Among other ways of affecting this, the members of that body did not hesitate to use their extra-legal authority for the purpose of reprimanding the judges who might have given a decision adverse to the Crown or had refused to submit to the royal dictates. Thus, in the case of Conwieftdams, as it is called, the judges, under the leadership of Coke, refused to obey the royal command to stay their judgement until they had spoken with the king. The rest of the judges were forced to submission by the Star Chamber, and Coke's obduracy was punished with dismissal.''' Indeed, the one great exception to the ordinary attitude of the Stuart judges was Sir Edivard Coke. In his early days" he had sought advancement by subservience to the Crown ; and, as Attorney-General, he conducted the case against the con- spirators of the Gunpowder Plot. In 1613 he had been made LIBERTY OF THE. SUBJECT 457 Chief Justice of the King's Bench. But what he valued more than high position or royal favour was the Common law, of which he was the most learned exponent of his time. He was in no sense a statesman, but a lawyer pure and simple, and, like the common lawyers of the day, most pedantic in his treatment of the law. In the three years during which he was at the head of the common-law courts he made it his endeavour (a) to bring all the courts in England under the Court of King's Bench, and (/S) to set up the twelve judges as arbiters between the Crown and the nation. His attempt to gain these two objects brought him into collision with three powerful bodies. The issue of prohibitions laid upon (i) ^Ae ecclesiastical courts the preliminary burden of proving that cases which came before them lay within their jurisdiction. By his use of prohibi- tions Coke fell foul of those courts in the cases oi Fuller'^ and Sir i Gardiner, Williatn Chanceyr 'I'he Statute of Praemunire forbade* appeals "• 4°. to any other court against sentences obtained in the king's T/''^^^- "11 122 courts. By premising that the king's court meant the Courts of Common law alone, Coke attempted, in the cases of Glanville and Allenj^ to twist this statute into a bar to the » Ihid. claim of (ii) Chancery to find a remedy in cases in which the "'• "• decisions of the Common law had been manifestly erroneous. The king, however, came to the rescue, and, by the advice of the Attorney-General Bacon, who was Coke's professional and political rival, he confirmed the claim of Chancery. But Coke did not scruple to quarrel with (iii) the Croiv/i itself. He had a particular dislike to the extra-judicial opinions demanded of the judges; and in i6io, in the matter of the Proclamations, he gave a decision adverse to the Crown; while in i6ii he opposed the attempt which the king made to put an end to the practice of prohibitions. In 1613 the king transferred him from the headship of the Common Pleas to that of the King's Bench, a technical promotion whose loss of salary made it a real punishment. But Coke's new position only spurred him on to the accomplishment of the two objects which he had set before himself. In the case of Feacham he not only objected to an attempt of the Council to intimidate the judges by the 'auricular taking of opinions,' that is, by the practice of consulting them individually, but his adverse decision forced that body to leave the trial to the ordinary process of 45^^ ENCLISII CONSTITUTIONAL HISTORY ' Gardiner, the Common law.^ Finally, his refusal to submit to the royal "• -ll- wishes in the case of Comfucndams filled up the measure of his iniquities, and in 1616 he was dismissed from the King's Bench and the Privy Council. He entered Parliament and became the leader of the legal party in the opposition, thus identifying the popular cause with the maintenance of the law. He had a chief hand in the drafting of the Petition of Right, 1634- but death removed him some years before the outbreak of the Civil War. This power of intimidation through the Council was denied to the later Stuarts, but they ' packed ' the bench with a shame- lessness as well as a success which left them no cause to regret the loss of other means of influence. Charles II and James II took every care to appoint fit instruments for the work in hand. The most unscrupulous was appointed Chief Justice at a critical moment — Scroggs, with a view to the trials arising out of the Popish Plot ; Pemberton, in order to condemn Lord Russell ; Saunders, to annul the charters of the boroughs : while James, in all methods more violent than his predecessor, employed his subservient bench to legalize that dispensing power, which in Charles' hands had twice failed, for the admission of Roman Catholics into the army. This was the result of the decision - Hallam, in the collusive action of Godden v. Hales? The state to iii. 60-63. \vhich the bench of judges was thus reduced may be gathered from the fact that, after the Revolution, all the ten judges who were then in ofifice, were summarily dismissed. The Revolution removed the means of some of the worst excesses of the Stuarts ; although for the removal of others, equally important, the haste with which the Bill of Rights had been drawn up, forced the country to wait for some years. Among these was the appointment and tenure of the judges, 1700. which at length found mention in the Act of Settlement. Here The judi,rcs it was provided (§ 7), that, after the accession of the Hanoverian since the ]\nQ, 'judges' commissions be made quamdiu se bene gesserint, oTi688'° ^"^ their salaries ascertained and established; but upon the address of both Houses of Parliament, it may be lawful to remove them.' In two particulars, however, these important officials still remained personally attached to the Crown : their commissions ceased on the death of the reigning sovereign, and part of their salary continued to be a charge upon the Civil LIRERTV OF THE SUBJECT 459 List. Both these liindrances to the complete independence of the judges were removed on the accession and largely by the personal initiative of George III.^ The judges were thus freed ' Erskine from all those sinister influences which in the seventeenth ^'^>'' "'• century had made them the most powerful allies of the ^ executive in its inroads upon personal liberty. But the authority of the Crown did not thereby lose a chief support in its contests with social disorder. The whole previous training of the judges places them upon the side of existing authority, and the omnipotence of precedents in the English law courts is a formidable barrier to anything approaching violent inno- vation. During the alarms caused by the progress of French revolutionary principles, the sternest upholder of authority could not have accused the judges of any undue predilection for liberty of opinion ; and the repressive measures of the legislature were only too well seconded by the severe sentences of the judges on all prisoners charged with seditious acts or speeches. The chief victims between 1792 and 1794 were — in England, Thomas Paine for his book ' The Rights of Man ' ; and in Scotland, Thomas Muir, the Rev. Fyshe Palmer and William Skirving, the secretary of a Society calling itself 'the Convention of the Friends of the People ' in Edinburgh, who were all three condemned to varying terms of transportation. But public feeling revolted from this severity, and when the juries, which had at first been in complete harmony with the judges, began as their only alternative to acquit political prisoners, a lull followed in indictments for political offences.^ " /^z'd- ii. The measures of the legislature proved sufficient to repress 200-31 1. all attempts at unlicensed association for political purposes ; but' the freedom of the press was more difficult to curb. Here too, however, the judges came to the rescue of the government, and from 1799 to 181 1 the laws of libel were administered in a way that left little to be desired by those in authority.^ The subject need not be pursued further. 3 /^^-^ Similar feelings animated the conduct of the judges in the ii- 331 -6. trials which resulted from the renewal of social disorder between 1817 and 1820;^ but the complete vindication of ■* /(6/^. ii. authority on the one side, and the infusion of a milder and 348-363- more sympathetic spirit into the legislature on the other, have combined to render unnecessary any such accumulation 460 ENGLISH CONSTITUTIONAL HISTORY of harsh laws backed up by severe judicial sentences, as those which so unhappily characterized the last half of the long reign of George III. It remains to be briefly noted, in this connection, that it is only comparatively recently that trial by jury has formed a real safeguard to the liberty of the individual. It has been seen that for a long while the jury did not cast off the character of witnesses in favour of its modern form of judges of fact. The members of a jury, then, found themselves assailed by two dangers. They, no less than the judges, were liable to (a) stimmons before the Star Chamber for verdicts contrary to the wishes of the executive, and were severely punished if they (/i) liabili- refused to reconsider what they had done. Thus, in 1554, ties of the when Sir Nicholas Throckmorton was acquitted of treasonous lurv. .... . participation in Wyatt's rebellion, the jury was heavily fined 1 llallani, and imprisoned.^ A more legal, though not less iniquitous, i. 49. restraint upon a juryman was {b') a persotial responsibility for his verdict. By a writ of attaint the verdict of a jury in civil cases was liable to review at the hands of a fresh jury of twenty-four. In so far as the first jury were regarded as witnesses, a reversal of their verdict convicted them of perjury, and the members were punished with imprisonment while their lands and goods w^ere held forfeit to the king. The writ of attaint was not legally abolished until 1826 : when, however, the jury lost their character of witnesses it fell into disuse. But until the decision of Chief Justice Vaughan in the case of 1670. Bushell, the jury were considered amenable to legal penalties 2 llallam, for their verdict." Yet for some time it seemed as if the jury "'■ 9" had only escaped from the Star Chamber to fall into the hands of the judge. Charles II. attempted to secure the condemnation of his political opponents through juries manipulated by sheriffs in the royal interest. He did indeed so obtain the execution of Lord Russell and of Algernon Sidney, while it was only by a timely flight that the leader of the opposition, Shaftesbury, saved himself from a similar fate. But all the intimidation exercised by the judges was ineffectual to force the jury to subservience. Despite the careful selection of the jury, the seven bishops were acquitted. Indeed, after the Revolution the judges discovered that their only avenue to complete control over a prisoner's fate lay in a perverse misreading of the law. LIBERTY OF THE SUBJECT 46 1 Such must be the explanation of the extraordinary interpreta- tion of the law of libel. ^ The undue severity exercised by the ' p. 452. judges in the political trials of the revolutionary period, were at last met by the juries with the same courage with which their predecessors had met and finally vanquished the judges' reading of the libel laws : and sentences of acquittal in the case of Miller (1770), Hardy and John Home Tooke (1794), and Hone (18 1 7) — to mention but a few of the most prominent — were a conclusive proof that the surest guarantee for individual liberty would not be sacrificed by those to whose best interest it was that it should be maintained inviolate. § 67. One of the most serious dangers which from time The Army. to time threatened the individual liberty of Englishmen, came from the undue use and extension of the principles of MILITARY SERVICE. This may be described conveniently in connection with the history of the methods employed at various times for the defence of the country against foreign attack. The land forces may be said to have been based on one or other of three principles — (i) homage; (2) allegiance; (3) pay. Although not the first in point of time, the principle of (i) The homage may be most conveniently dealt with first of all, Feudal because, unlike the other two, it has entirely disappeared out of the arrangements of a modern military force. The most effective part of the Anglo-Saxon military arrangements was that which represented the Comitatus described by Tacitus — the dux or leader with his comites or band of noble youths," - S. C. 57, who on the conquest of Britain developed into the king and §§ '3i i4- the body of landowners. They had formed the professional army with which the chief had carried out his conquest, and grants of land had been given them in recognition of their past services and with the understanding that similar service would be continued. But as the personal element in the relations between king and thegns dwindled away and as thegnhood extended, the need of some new basis for a reliable military force would be felt. Now, the great work of the Norman Conquest was to simplify Before the the complicated relations of Anglo-Saxon life by ' territorializing' Norman them all, that is, by binding up all duties and services with Conquest, the possession of land. But it seems quite possible that the 462 ENGLISH CONSTITUTIONAL HISTORY I S. C. 65. Cf. E.//.A xii. 490. •^ S. C. 65, §3- 'Ihe king's " ul- ware.'" ■' Domes- day, 156, 159, 295. After the Norman Conquest. ^ S. C. H. §96. ■'' Round, Feudal England, 247 et seq. territorializing of what is often considered the most important of such duties — that of military service — had begun long before the invasion of William. A document assigned to the first half of the tenth century tells us that even a ceorl could attain to thegnhood if to the possession of five hides of land he added special service to the king.^ The five hides ' may denote the unit of military service. There is much mention of it in Domesday in that connection. On the other hand, '.ve are told of thegns who had other thegns under them owing military service to the Crown :'- there is evidence that the king sometimes allowed his ecclesiastical tenants to compound for the military service which was due from their lands, and the lord seems even to have been allowed to exact a fine from a tenant who refused to obey the summons to the host. All this looks like an incipient feudalism. It would be very much to the king's advantage that the service of the great thegns should be settled in amount, and that they should be re- sponsible for the service of the smaller folk. Things might be tending in this direction : the king's charters might even occasionally contain stipulations for definite military service. But we have no real warrant as yet for saying that military service and the tenure of land were inseparably connected, that ' the land was being plotted out with five-hide-units,' that the ' five-hide rule obtained throughout a large part of England ' or that ordinarily ' in the eleventh century the king could only ask for one man's service from every five-hides.'^ This territorializing of the military service was, however, quickly completed by William I in his introduction of the FEUDAL LEW. Lands were definitely granted out by the Conqueror on condition that their holders would discharge at least part of their obligations by military service. The unit of service was the knight's fee, but the obligations of individual tenants-in-chief of the Crown varied from the liability for appearance in person or by deputy, to responsibility for a large number of fully equipped knights. It does not seem that the number demanded by the king bore any strict relation to the size of the tenant's estate.'* The materials at our disposal prove the existence of a number of estates which, while differing widely in size, bore the same liabilities for military service.'' Thus it seems likely that this service was arbitrarily LIBERTY OF THE SUBJECT 463 fixed by the king when he granted the estate, perhaps, as has been suggested, in terms of an unit of five knights. In any case, the amount of the service was a bargain between the tenant-in-chief and the Crown, and the tenant-in-chief alone was responsible for the performance of the service due from his estate. Moreover, seldom, if ever, did he enfeoff or make permanent provision for the full number of knights for which his estate was liable : the balance of the service due remained charged on his demesne, and the Assize of Arms imposed on him the obligation of keeping in stock the proper equipment for the temporary doers of that service.i Over the size of this 1 s. C. feudal levy there has been much dispute. The legend of i54) § i- Ordericus Vitalis,- that the Conqueror provided for a force -^ ibid. 82. of 60,000 knights, and the more sober calculation of Stephen Segrave in the thirteenth century, which fixed it at 32,000, may ' be dismissed as equally improbable. On the one side, it has been thought ^ that not even the officials of the Exchequer » s. C. H. were able to fix the number of existing knights' fees, and that § 161, and the ascertainment of this was the chief object of Henry's H's ' • ^4 • inquiry in 1166, of which the few extant returns form our earliest authority for the organization of the feudal host in England. But on the other side, it has been pointed out that such ignorance on the part of the Crown officials was im- possible on the supposition of an original bargain between the tenants-in-chief and the Crown, and that what Henry II really desired to ascertain in 1 166 was the number of knights' fees which had been created on each estate.'* More probable J^°" , ' r 1 ■ 1 1 r 1 -1 Feudal conjectures, 01 which the proofs are too long to give here, Eifdand have placed the available number of knights at between five 237. and seven thousand.^ » ji,i^^ 292. From the very first establishment of the feudal force the Its disad- kings seem to have realized the difficulties inseparable from vantages, its existence, and to have made every effort to modify and gradually to destroy it. The Oath of Salisbury withdrew from 1086. every English subtenant all excuse for obedience to the ordinary feudal rule of following his immediate lord in pre- ference to the overlord. Despite this precautionary measure, the events of Stephen's reign showed that the existence of the feudal levy was highly («) dangerous to the Crown. Moreover, the limited term of the service proved it to be {b) ineffective for 464 ENGLISH CONSTITUTIONAL HISTORY foreign ivarfare. For, a large part of the time would be con- sumed in journeys ; a considerable portion of the levy consisted of ecclesiastics whose constant opposition limited the service ; while the division to which the enfeoffed knights' fees were , often subjected rendered it difficult to get full service even of the limited amount, since the owner of a half fee was only liable for half the usual service. As to the whole question of the liability of the mediaeval army to foreign service, it is to be noted that, under \Villiam II and even at a later date, the 1 6". C. obligation was taken to include the fyrd or national militia ; ^ 93, Flor. jj^^j. scutage, or the commutation for personal service, applied to bishops who could have no foreign fiefs, and to simple knights who would be mostly of English birth, so that no difference was made between home and foreign service. It is true, however, that the introduction of scutage might be con- strued as implying a doubt whether service could be demanded of Englishmen in a land where they had no fiefs. But in 1177 earls, barons, and knights crossed the Channel for Henry II - S. C. against France.' And if there had been doubts or even 13' ' (^) (juarrels over the foreign service under Henry II and i. 160. Richard I, the doubts were set at rest and the quarrels conse- quently increased by the loss of Normandy in 1204; for, while the new nobility of Henry II had never boasted of possessions out of England, the king's excuse for claiming 2 S. C. service in his lands on the other side of the Channel was now 255 ; entirely taken away. Thus the pleas put out by the feudal den iv \o • td^'i^s as an excuse for not rendering service, took two forms. and (i) Sometimes they claimed that their tenure did not include V. M. S. service abroad. This was urged by Bishops Hugh of Lincoln 248. ' ^^'^^ Herbert of Salisbury to Richard I's demand in 1198 for ■» Ibid. a force of 300 knights to serve him for a year in Normandy ; '" 277 ; Rad. and by the northern barons in 12 13 when they refused to follow ^^^^ John to France.'* On the other hand, the barons who led the •'' Ibid. opposition to Edward I which ended in the confirmation of 440; the Charters, refused to go to Gascony while the king himself Hemrne went to Flanders, since (2) their service abroad only meant ii. 121, personal service with the king.'' Attempts It is small wonder, then, that the kings attempted to to got rid modify the organization of the feudal levy. The effect of (i) the Oath of Salisbury has been already mentioned. The I>IBERTY OF THE SUBJECT 465 anarchy of Stephen's reign spurred his successors on to further efforts. • The first attempt to get rid of a large portion of the feudal force was by (ii) Scutage. This was a payment in place of personal service, at a varying but definitely deter- mined rate, and is generally said to have been first applied by Henry II in 1156 to the Church lands held on military tenure, in order to ensure in some form a service to the per- formance of which constant difficulties were raised by those from whom it was due. In 1159 it was extended to the agrarii milites^ as they are termed by the chronicler.^ The 1 s. C. advantage of this was that, while the king thus got rid 129, of the most cumbersome and discontented portion of the jvionte^ feudal levy, he procured for himself a sum of money with which he could hire mercenary troops for his foreign wars. It seems possible, however, that scutage originated earlier than the reign of Henry II. Domesday contains notices of payment in lieu of military service, whether the payment was made to a substitute '' or direct to the Crown. Moreover, j s. C. qi since a great baron rarely provided by definite enfeoffment for Customs of the whole of the service due from his estate, he must have Y-^'' . line 7. found substitutes for that portion of it which remained charged upon his demesne. It has been conjectured that scutage represented the sum paid to such substitutes, which there is much reason to suppose was paid as early as the reign of Henry I to the king instead. The forty days' service required of a feudal tenant bears a definite relation to both the marc and the pound, in varying rates of either of which scutage was afterwards exacted. It does not seem idle to suppose that the substitute's probable pay of 4^. or dd. a day for forty days gives the clue to the amounts exacted under the name of scutum or shield-money.'' The history of scutage as a tax ■> cf. Ibid. is pursued elsewhere. Another device employed by Henry II i75> for lessening the numbers of the feudal levy was the application ^"^ ^''*' to it of the principle of a (iii) Quota. In 1157 he called on every two knights to supply a third, who should thus be at his service for four months. In the same way Richard I, in 1 1 94, summoned a third part of the knight service of the ■* /^?Vf. kingdom,^ although in 1198 his attempt to obtain a force of ^54 ; 300 knights for a year on the same principle was defeated by jen iii. the resolute attitude of the two bishops. In 1 205 John provided 242. 2 H 466 ENGLISH CONSTITUTIONAL HISTORY himself with a tenth part of the full feudal force equipped by ^ 5. C. 281. the abstention of the remaining nine-tenths;^ while, under Henry III, the year 1234 furnishes an instance of a similar service. The principle was carried even beyond the feudal levy. For, the kings did not hesitate to (iv) confound the feudal force ivith the local fyrd, whether by rendering the holders of knights' fees liable to the Assize of Arms, by im- posing the system of quota aUke on the fyrd and the feudal tenants, or by summoning the two bodies, for both of which the sheriff was in the main responsible, to meet at the same time and place. The last method to be noticed aimed at the dis- armament of the feudal force by a measure that practically amounted to its degradation, (v) Distraint of knighthood was a measure by which all holders of a certain quantity of land, irrespective of the tenure by which they held it, were forced either to take upon themselves the duties and responsibilities of knightly tenure or to pay a heavy fine. It may be that its primary object was the degradation of the knightly body by the wholesale introduction into it of those who had no pretensions to gentle birth. But it equally served the purpose of swelling the royal coffers with the feudal dues of those willing and the fines of those unwilling to accept the dignity thus thrust upon them, and of increasing the number of persons who would be eligible as knights of the shire in Parliament. The earliest instance of a levy of this kind is in 1224, and 2 S. C. H. others occur under Henry III ;- but it seems doubtful whether § 239 for |-|^gy referred only to tenants-in-chief of the Crown or were intended to include tenants of other lords. Under Edward I, however, all such doubt is removed. In 1278 the sheriffs are directed to force the knightly rank upon all holders of land worth ;^2o a year, ' whosesoever tenants they are' [de (juocunqtie ^ S. C. teneani).'^ The reluctance of the freeholders to undertake 457- this burden is probably accountable for the early fluctuations in the qualification. In 1285 this is fixed as high as an estate of the annual value of ;j^ioo. But, until the time of the Tudors, an estate of _;^2o seems to have been the distinguishing mark of an esquire who wanted nothing but his own willingness or the command of the king to advance him to knightly rank. The increase in general wealth and the fall in the value of money probably account for the advance of the qualifying LIBERTY OF THE SUBJECT 467 sum by Elizabeth to an estate of ^40, at which rate both James 1 and Charles I imposed the obligation. It was abolished by the Long Parliament ; and the destruction of feudal tenures on the accession of Charles II removed all possibility of its revival. It must be borne in mind that these efforts of the Crown to rid itself of the feudal levy were by no means systematic. The feudal force was still occasionally called out in full numbers when the king took the field in person ; but these various endeavours to suppress it were practically crowned with success. For, chiefly by their means the minor tenants-in-chief of the Crown became blended with the general body of freeholders ; the caste spirit provoked by feudalism, after a moment's glorification under the name of chivalry, sank under the discredit which attached to that spurious form of military enthusiasm ; and with the general decay of feudal obligations into a mere means of raising revenue, new and more efficacious methods were found of providing for the defence of the country. The last occasion of the summons of the feudal levy was as late as Charles I's Scotch war in 1640. § 68. The earliest principle on which military service was (2) The based was that which, with the establishment of monarchy, ?i^f.'""^^ came to be known as (2) allegiance. Tacitus describes the fighting force of the German tribes as the nation in arms organized according to pagi, each of which sent its hundred warriors to the host.^ In Anglo-Saxon times we find mention 1 ^- q^ -g of a threefold duty which lay upon every freeman. This § 6. included biwh-bot or maintenance of local fortifications, bric-bot Its original or repair of bridges, and fyrdung or duty with the Fyrd, orgamza- a national militia which seemed to carry on the system described by Tacitus.- The service was enforced by a heavy penalty for -^ s. C. neglect, called fyrdwite,^ which varied, according to the rank 73. c. 26. of the offender, from forfeiture of his land to a moderate fine. ^^ c ci After the settlement of the English the fyrd may have sunk into neglect ; but the spasmodic character of the Danish invasions led to its revival, and ^4'lfred organized it into two halves, alternately for active service and as a reserve. But as society became more complicated, or as equipment became more elaborate and costly, the original liabilities became con- tracted. By commendation or otherwise a simple freeman 468 en(;lish constitutional history could so compromise his freedom and its obligations that he could escape his duty altogether or lay it permanently on another ; while whole towns and even shires were able to compound for the duty by a fixed amount in men or even in (Oxford?° money. ^ Among the old English institutions retained by the 91 (Berks). Conqueror, the fyrd held a chief place. He and his successors 1088-1101. ^^Pt it as a balance to the feudal class, and relied on it in ■- S. C. their struggles with the Norman barons.- William II, however, 92, 96- di(i not scruple to use it as a means of extortion also. In 1094 Ranulf Flambard summoned the troops to Hastings for an expedition to Normandy and then fleeced them of their journey money, leaving them to make their way home as best they •' /fiid. 94. could. ^ But the new system of government inaugurated by the Conquest brought out /?£'$ 70. In Striking contrast with the feeling long entertained in the country about the army, the maintenance of the Navy has never roused any jealous suspicion among Englishmen at large. And yet the actual amount of interference with the freedom of the individual which has been based on the plea of the maintenance of the navy, has been greater, or at any rate more striking, than any which the exigencies of the army produced. Two such will at once occur to the reader— the levy of ship-money in the reign of Charles I, and the employ- LIBERTY OF THE SUBJECT 48 1 merit of press-gangs, whose deeds in the last century are so notorious. But Englishmen were proud of their navy, and knew it to be necessary for the defence of their shores, their commerce, and their colonies ; so that, although the adoption of other methods has rendered resort to such measures un- necessary, up to the present moment no law like the Act of the Long Parliament forbidding impressment for the army except in the case of grave national danger, protects the sanctity of our homes from the invasion of the press-gang. The meatis by which the navy has at various times been manned fall under three heads — (i) the duty laid upon the Cinque Ports ; (2) hire or forcible impressment of both ships and men from the mercantile marine at other ports ; (3) voluntary enlistment to serve on ships provided by the Crown. It is to be remembered that there was no permanent royal navy until the time of the Tudors. The sovereign possessed a few vessels which answered the purpose of the present royal yachts ; for they were intended only to take the king to and fro between his various dominions. And if there were no ships much less was there any permanent staff of seamen. Even for some time after the foundations of a royal navy had been laid, the ships were laid up in dock in time of peace and entrusted to the guard of a few caretakers. But at a time when no ship could leave a harbour unless she were armed with sufficient strength to resist attack from pirates, it only needed the organization of a system which could be put in force at need, to procure for the Crown a very adequate supply of both ships and men. Thus at the siege of Calais by 1349. Edward III, of the 730 ships said to have been employed, with nearly 15,000 men on board, only 25 were royal vessels, bearing the meagre equipment of 419 men; while the fieet which met the Armada at a time when the English navy had really been begun, consisted of 176 vessels and 15,000 men, out of which only 34 ships and 6,000 men belonged to the royal service. The first attempt at such organization by the Crown was an application of obligations analogous to those of the feudal levy, -l^lfred, to whom, among other things, the foundation of the English navy is ascribed, found it so difficult to procure sailors at home that he had to man his ships with Parisian mercenaries. 2 I 482 ENGLISH CONSTITUTIONAL HISTORY One of his successors seems to have laid the obligation of pro- 1008. viding a vessel upon an estate of a certain size, and zEthelred may merely have systematized this method wlien he directed that every 300 hides of land should furnish a ship. That this obligation was incumbent not only on the seaboard districts, is sufificiently clear from the mention of \Viltshire and Worcester- shire in this connection. This system, however, did not outlast the Norman Conquest, although it is probably responsible for the custom which prevailed long after, by which ships from the same counties went into battle side by side. Nor does there seem to have been any arrangement before the Conquest for procuring sailors to man the ships. Both wants were provided by William I's incorporation of the (i) Cinque Forts. These were originally the five ports of Dover, Hastings, Hythe, Romney and Sandwich. To these were subsequently added 1191. the 'ancient towns ' of Winchelsea and Rye; and gradually a number of other places, both on the coast and even inland, some of them corporate towns, were attached with the title of (i) Obliga- limb or member, to one or other of the chief ports. This th°"r° powerful corporation possessed all the apparatus of self-govern- Ports. ment under a lord warden, who for some time was the nearest approach in England to an admiral of the seas. He held his Court of Chancery, now abolished, in St James' Church at Dover ; he presided over the Shepway or local parliament held near Hythe, which heard appeals from the minor courts of each port and beyond which there lay an appeal to the Court of King's Bench. Over this he still in theory presides, as well as over his Admiralty Court ; he is, moreover, the Governor of Dover Castle and the nominator of all Justices of the Peace for the liberties of the Cinque Ports. Below the Shepway came two courts — the Court of Brotherhood, composed of the mayors of the seven chief towns and a number of jurats and freemen from each ; and the Court of Guestling, containing, in addition, the mayors, bailiffs, and representatives of the corporate members. These conducted all the business relating to the supply of ships. For, in return for the privileges involved in this organization, each member of the corporation was bound to furnish a fixed number of ships and men to serve the king without pay for fifteen days in each year. In the thirteenth and fourteenth centuries this liability had become fixed at LIBERTY OF THE SUBJECT 48^ fifty-seven ships, of which Dover provided the Hon's share of twenty.^ It is probable that, until the formation of a royal ' Social navy under the Tudors, the contingent from the Cinque Ports ^"'?'^""^ •' . ^ I. 412. formed the nucleus of any English force upon the sea, and that for some time later it continued to be an appreciable element in all naval armaments. But the force of the Cinque Ports alone does not accoimt for the large number of ships mentioned as taking part in all early English naval warfare. King John is said to have equipped a fieet of 500 ships; Edward III won his victory 1340, at Sluys with a fleet of 300 ; Henry V transported his army to France in rfo less than 1,500 vessels. Indeed, although no other ports seem to have owed definite sea-service to the Crown, yet in time of war they were always liable to have their (2) sJdpping put in requisition, whether by hiring or (2) Im- impressment, for the needs of the state. By this means, until pressment the formation of an adequate royal navy, first the contingent chant of the Cinque Ports and then the scanty ships of the navy ships. itself were supplemented. It was, no doubt, largely for this reason that from the time of Edward III onwards much trouble was taken by the king to encourage merchant shipping. Edward imitated his father in proclaiming himself ' Sovereign of the sea,' and, for the protection of commerce from pirates, endeavoured to organize some form of fleets sailing under convoy of ships of war. Under Richard II the first Navigation Act was passed with the object of encouraging English shipping 1381. by giving to home merchants a monopoly of the carrying trade. Henry IV and Henry VI appointed guardians for the coast.- 2 pium- Henry V built a few large ships, and invited the merchants to ^^'^'■'^ follow his example. Edward IV began the system of commercial 235-8. treaties with foreign nations. All the chief requisites of ship- building, such as timber and hemp, were carefully guarded from waste, and their cultivation was enjoined. Nor was the mamii/ig of the fleet a difficult task. Everything was done by the legislature for the development of the English fisheries, because they were regarded as the best school for the training of seamen. Indeed, the Parliament of Edward VI went so far i^^g. as to enforce w'hat has been styled a ' Political Lent,' ^ or the ^ Cunning eating of fish on so many days in each week, in order to create ^^'^' ^^^S- a demand which the Reformation had done much to destroy, qo,]^^ i. 443. 1 484 ENGLISH CONSTITUTIONAL HISTORY The statute was re-enacted by both Ehzabeth and James I, the legislature on all three occasions carefully guarding itself against any supposed religious object in the enactment. The seamen so trained were liable to be pressed for the royal service ; but their engagement only lasted for the term of the current war. This matter of the impressment of seafaring men on the out- break of a war has been the subject of many statutes from the days of Richard II down to those of George III, and of one 1676. judicial argument in the reign of Charles II. In every case its legality has been placed beyond dispute, and indeed the Crimean War was the first occasion on which the fleet was manned without recourse to impressment. The formation of a naval reserve will probably prevent the employment of any such measure in the future. Early in the eighteenth century, if not before, suggestions and attempts were made for the registration of all seafaring men who could be summoned to serve in case of need ; but no system was set on foot until 1859, when a naval reserve was formed of those officers and men of the mercantile marine and of fishermen who are willing, in consideration of a small retaining pay, to undergo a certain number of days' annual training on board a war-ship or at a naval battery. These, together with the coastguard, the seaman pensioner reserve, and the royal naval artillery volunteers, form a body of over 40,000 men who are at the disposal of the Admiralty in the event of war. The two former bodies consist of professional sailors who have served a term in the royal navy ; the last are the naval counterpart of the army volunteers. Ships, as well as men, are at the dis- posal of the government in case of need ; and since about the beginning of the present reign, either by contract or by register, the Admiralty have had an option, which they have not been slow to use, of (fngaging a certain number of suitable vessels for the service of transport or other warlike need. The foundation of the royal navy has been variously attributed to Alfred, John, Edward III, and Henry V. But the efforts of none of these sovereigns in this direction were permanent. Both Richard I for his crusade of 1190, and John for his contest with Louis of France and the barons, acquired royal vessels in addition to the contingent of the Cinque Ports, and manned them with mercenaries mostly of English blood : while TJTIERTY OF THE SUBJECT 485 Henry V built a fleet which the neglect of his successor suffered to decay. All the earliest efforts of the executive seem to have been devoted to the provision of an organization which could be brought into efifectual use in time of war without burdening the Crown with the expenses of a permanent fleet. But until the fourteenth century there was no permanent organization for naval affairs, and commanders were appointed whenever it was necessary to collect a fleet. The nearest approach to an organization was that of the officers of the Cinque Ports. But in 1306 Edward I, having instituted a system of coastguard, divided up the coast between three admirals, for whom his grandson substituted one Lord High Admiral (1360).^ It was, perhaps, the establishment of this 1 5. C. H. organization which caused Edward II to claim for the English § ^43- king the dominion of the sea, a position to which Edward Ill's victory at Sluys for a time gave some valid claim. Further, 1340. Richard I had issued ordinances for the administration of his crusading fleet ; but it is the regulations of Henry V which form the origin and basis of the present Admiralty law. It is to the early days of the Tudors that we must ascribe the real beginning of a {^permanent royal 7iavy. Henry VIII estab- (3) Volun- lished the dockyards at Deptford, Woolwich and Portsmouth, ^^""y ^nlist- 1 . T . ■ .,,.., ^ ment. and appomted commissioners to superintend the civil part of the naval administration. But the ships which he and his successors maintained, were manned by the old methods as occasion required, and no permanent body of officers or men was maintained in time of peace. The exigencies of the Commonwealth caused the formation of a standing fleet, as well as a standing army ; and the excellence of the material at the disposal of the government was shown by the success of the Commonwealth in its contest with the Dutch, who then possessed the finest navy in the world. With the reign of Charles II the royal navy becomes a permanent institution of the country. The exertions of the Lord High Admiral, the Duke of York (afterwards James II), and Samuel Pepys as Secretary to the Admiralty, resulted in the establishment for the first time of a system of half-pay, by which a permanent staff of officers and men was retained in time of peace. To the same period is to be ascribed the first parliamentary recognition of the navy by a vote for its maintenance and by 486 ENGLISH CONSTITUTIONAL HISTORY 1708. ^ Anson, ii. 185-6. Popular methods of influenc- ing the adminis- tration. (I) Peti- tions, a provision for its discipline under which the first Articles of War for the navy were promulgated. These, with amendments, are embodied in the Naval Discipline Act, which since 1866 permanently provides for the navy, as the INIutiny Act and Army Act have over the same period provided for the army. To the same persons is due the organization of the Admiralty in four departments. On the death of Queen Anne's husband. Prince George of Denmark, the ofifice of Lord High Admiral was replaced by the Admiralty Board, and was revived only in 1827, when it was held for a short time by the Duke of Clarence, afterwards William IV. The Navy Board, Victualling Board, and Treasurer of the Navy represented respectively the profes- sional, the commissariat and the financial duties in connection with the naval organization of the country. In 1832 the two boards were abolished, and in 1835 the office of treasurer also disappeared. The whole work is now done by the Admiralty Board, consisting of a First Lord who, as a cabinet minister, is supreme, four naval lords, a civil lord, a financial and a parliamentary secretary, — all of whom change with the government — and a permanent secretary. The First Lord alone is responsible for all that is done, and he apportions the business among the members of the board. But, unlike the Secretary of State for War, the Admiralty Board is jointly at the head of the navy, and the First Lord has no necessary pro- fessional adviser in the position occupied by the Commander- in-Chief towards the War Office.^ § 71. Such are the most important methods by which from time to time in the course of English history, individual liberty has been imperilled or violated. Others, such as the undue extension or the indefinite interpretation of the law of treason, are dealt witli elsewhere. In conclusion, the fulness as well as the limitations of this individual liberty may be illustrated by the history of the practices of (a) the presentation of public petitions, {J>) the holding of public meetings, (c) the formation o( puhVic associations. Their appositeness consists in the fact that // is by these three methods that the nation outside Parlia- ment endeavours to influence the executive in some particular direction. After the establishment of Parliament the subjects of such petitions seem to have been confined to the redress of private grievances. The exciting political events which led up LIBERTY OF THK SUBJECT 487 to the Great Rebellion began the modern system of petitions, whether addressed to the king or to Parliament, on matters of pubhc interest. The demonstrations by which the presenta- tion of some of these petitions was accompanied, led im- mediately after the Restoration to the passing of an Act 13 <^ar. against tumultuous petitions, by which no petition to the Crown A^' ^' or either house of Parliament for the alteration of matters established by law in Church and State should bear more than twenty signature's without the approving cognizance of a cer- tain number of specified officials ; and no petition should be presented by a body of more than ten persons/ In 1680, ^ Hallam, when the political feeling in the country showed itself in the "• 329- presentation of numerous petitions to the Crown for the meeting of Parliament, the petitioners were by a royal pro- clamation threatened with the penalties of the Act, and counter-petitions were encouraged from those who ' abhorred ' the disloyal designs which underlay the wish for the calling of Parliament.- Such a use of the Statute inhibited all petitions -/^id. except such as might be pleasing to the Crown ; and accord- "• 442. ingly, the Bill of Rights declared that ' the subject has a right to petition, and that all commitments and prosecutions for such petitions are illegal.' But the Revolution was the triumph of Parliament and of the narrow oligarchy then represented in the House. Whigs and Tories alike resented the attempt to exercise any outside influence upon their deliberations ; and, although it was some time before Place Bills put a check on the power of the Crown, the Commons did not scruple to use their privileges for the purpose of excluding the influence of the people from the so-called house of popular representatives. The most striking instance of the use of this power was the case of the Kenfis/i Petitioners in 1701. The Tory ministry in power was withholding supplies for a war begun by the Whigs. The grand jury and many of the freeholders of Kent, indignant at this unpatriotic conduct, petitioned that the loyal addresses of Parliament might be turned into bills of supply. The petition was with difficulty presented ; it was voted scan- dalous, insolent, and seditious ; and five of the petitioners were imprisoned until the end of the session.^ It is small wonder, ■'■ ibid. then, that general petitions were little used; for, those un- '"• 271-2- acceptable to the majority, such as the petitions from the City 488 ENGLISH CONSTITUTIONAL HISTORY of London in 1690 and from a number of clergy, lawyers and doctors in 1772 for a relaxation of some of the religious dis- abilities of the day, were summarily rejected. It almost seems a judgement on the action of the Commons that the first question on which an extended system of petitioning was invoked, was that of parliamentary reform. In 1779 the free- holders of Yorkshire to the number of 8,000, began a move- ment which spread into many parts of the country and pro- duced forty petitions in that year, and three years afterwards fifty more, all concerned with the reform of the House of Commons. It was the movement for the abolition of the slave trade, beginning with a petition of the Quakers in 1782 and continuing until the Emancipation Act of 1833, which, in the number of petitions presented, first rivalled the exer- ^ Erskine tions of modern days : ^ but it was not until towards the end 62^8' "* °^ George IV's reign that the principle of attempting to in- fluence Parliament through the carefully expressed manifestoes of men of ability and local authority, gave way to the present democratic practice of counting heads, and produced those monster petitions whose influence has been so largely dis- counted by the frauds which were employed in their con- coction. Of these the most celebrated was the petition of the Chartists in 1848, which purported to bear no less than five 2 Ibid. million signatures.- It would seem as if the extension of the 11. 410. franchise had naturally removed the object of petitions, and that their use would therefore -cease : for they afforded one of the few means by which the unenfranchised classes could express their opinions on public matters. However that may be, the tide of petitions has flowed steadily on throughout this century, reaching for many years in succession an annual average of considerably more than ten thousand. The liberty allowed to petitioners is so unrestrained that the House of Commons permits them practically 'to express anything short of an intention to break the law or a contempt for the body to •' Anson, which they appeal for redress.' ^ This enormous development 1- 35°- jri the use of petitions soon entailed a change in the procedure of the House of (Commons. Hitherto the presentation of a petition was followed by a debate on its contents. A con- tinuation of this practice would have absorbed the whole time of the House. It was accordingly resolved by standing orders LIBERTY OF THE SUIiJECT 4.89 of 1842 and 1853 that, while a debate might be raised on any petition whieh disclosed matters requiring an immediate remedy, in ordinary cases the member presenting it should limit himself to a statement of its contents, the places or persons whence it emanates, and the number of signatures attached. Petitions are in many cases the outcome ol public meetings, (2) Meet- which are often held for the purpose by political associations. '"S'^' ^^^ All three forms of expressing and crystallizing public opinion cfaijonT' took their rise about the same period. The oligarchical Parliament of the eighteenth century, which used all means to shut out the influence of the people, was bound occasionally to bend before the storm of public opinion which, in the early part of the century, was marshalled by the newspaper press. Thus, in 1733 Walpole, although commanding a majority in Parliament, was forced to withdraw his excise scheme in deference to the clamours of the people ; in 1754 Parliament was intimidated into a repeal of the Act for the naturalization of the Jews, which had been passed a short while before; and in 1763 Bute was by the same means driven into an involuntary retirement. It was, however, with the agitation produced by the case of Wilkes and with the 1768. interference of the Commons with the rights of electors in the Middlesex election, that the real history of public meetings and associations begins. Of these latter some of the most important were the Protestant Association formed for the repeal of the Catholic Relief Act of 17 78 and leading to the Gordon Riots in 1780; the Slave Trade Association for the abolition of the slave trade, and the direct predecessor of the present Anti-Slavery Society ; the Revolution Society to commemorate the Revolution of 1688; the Society for sup- porting the Bill of Rights, which was the outcome of the Middlesex election ; the Society for Constitutional Informa- tion formed in 1780 to forward the cause of Parliamentary Reform ; and the London Corresponding Society and the Society of the Friends of the People, both of which were the result of the early movements of the French Revolution.^ 1 Erskine From 1792 onwards the repressive measures of the govern-^^^y' J'* ment drove many of these societies to secrecy, and ' associa- '^' tion degenerated into conspiracy.' This was met by two Acts — one to prevent seditious meetings, and another to suppress by i795- 490 ENGLISH CONSTITUTIONAL HISTORY name certain societies, including the extreme London Corre- 1 Erskine spending Society which gave its name to this Act.' These were ■'iq'^^-Io ^^^ ^^^ ^^'^^^ effective ; but the renewed agitation, chiefly from social causes, which followed the cessation of war, was again met by a proclamation against seditious meetings enforced in 1819. what is known as the ' Manchester Massacre,' and by one of the ' Six Acts ' which prohibited any meeting of more than - Ibid. 11. fifty persons without notice and permission. The operation 353-9- Qf fj^jg^ however, was limited to five years.- But the disgust 1820. occasioned by the Cato Street conspiracy showed that all serious danger had passed away. In 1824 the repeal of the Combination Laws, which had practically forbidden all asso- ciations of working men for the purpose of securing better wages, did much to satisfy the superior members of the class which had contributed most, and perhaps most justly, to the social discontent of the previous period. The extraordinary success, on the one side, attained by the Catholic Association in the Catholic Emancipation Act of 1829; by the widespread agitation in favour of parliamentary reform in the Act of 1832 ; and by the Anti-Corn-Law League in 1846, together with the 1830-1844. failure of O'Connell's agitation in favour of the repeal of the 1 838- 1 848. Irish Union and of the Chartist Movement, showed both the impossibility of successfully coping by repressive measures with movements that command a widespread sympathy, and the inevitable failure of an organization which appeals to one class or section of the community alone. The laws which govern the formation of political associations relate chiefly to the demand from their members of oaths or engagements unsanctioned by the law. The right of public meeting is limited by such laws as regulate individual liberty of speech and person. Thus, all meetings are legal until some illegal act has been committed ; while no magistrate or official has any power to prohibit a meeting by proclamation merely because he is aware that the holding of it will lead to a breach of the peace. This affords merely another illustration of the truth that the English law takes account only of a man's actions and not of his intentions. The absence of any power to take cognizance of the latter is no doubt in many ways a cause of weakness to the executive ; but it tinds ample compensation in the increased security which is thereby given to the liberty of the individual. CHAPTER X REVENUE AND TAXATION § 72. It has already been shown what an important part has Early dis- been played by questions of money in the development of the 1'"^'.'°" English Constitution. For, it was the king's desire to obtain revenue grants from his subjects in the most convenient manner and taxa- possible which led to the first summons of representatives of '""' the Commons to Parliament ; and it was the constant neces- sities of the king that gave the Commons the opportunity of gradually establishing the dependence of the Crown upon Parliament not only in questions connected with grants of money, but in all other matters whatsoever. From the outset it is convenient to distinguish between revenue and taxation. The king was provided with regular means, whether in the shape of lands or of privileges convertible into money, by which the royal dignity could be sustained and the ordinary functions of government carried on. The earliest attempts at taxation are connected with the invasions of the Danes, and take the shape of special levies to meet special and temporary emergencies. With the increase of the necessary functions of government comes a corresponding increase in the need for extra supplies ; but it is only very gradually that the grantors discover that the duty of assent, carrying with it of necessity the opportunity of refusal, has placed a most effective weapon in their hands. The constant cry of mediaeval times ' that the king should live of his own ' {que notre seigneur Ic roi vive de soen), must not, however, be misconstrued. Not only did the ever-growing activity of government make it more and more impossible to meet increasing expenses with a stationary or even diminishing revenue ; but ' no patriotic statesman dreamed of dispensing I altogether with the taxation which gave the nation an un- 492 ENGLISH CONSTITUTIONAL HISTORY ' 5. C. H. varying hold on the king whether he were good or bad.' ^ The ^ ~'^^' desire which underlay the demand was no more tlian that in time of peace the revenue should suffice for the ordinary expenditure of government. Indeed, so long as the personal government of the monarch lasted, Parliament clung to the view that taxation was an exceptional method of supplying the needs of administration, perhaps chiefly called for by the advisability of meeting in each year the expenses of that year. But experience proved that taxation must be annual ; and while Parliament used the necessity of an annual grant as a means of keeping a hold upon the course of government, the superior facilities for borrowing enabled the Crown to meet extraordinary expenditure by loans. Thus, whereas during the time of personal government ordinary expenses were met by the revenue and extraordinary charges by intermittent taxation, the establishment of the omnipotence of Parliament at the Revolution of 1688 inaugurated an era in which the ordinary expenses of government were met by regular taxes annually granted ; while for extraordinary burdens government had recourse to loans, the interest on which became an annual charge. Posterity was thus burdened with a large share in the payment of the current expenses, on the specious pretext that they were incurred partly in its interests. The ancient hereditary revenues of the Crown may be grouped under two heads: (i) land, which included rents and dues of various kinds; (2) the exercise of the royal prerogative, which took the shape of numerous fees and fines. In the course of time, to these were added others, such as (3) the feudal dues after the Norman Conquest, (4) the Post Office at the Restoration, and (5) the hereditary revenues of Scotlafid and The Crown Ireland. By far the most important of these have been the Lands. Croivn Lands. It does not seem likely that in the early days of kingship the holder possessed any lands by virtue of his title. As a great thegn he would doubtless have extensive estates in folkland : as king he would enjoy those gradually growing rights to various dues off all the lands of the kingdom which, when ' booked ' to church or thegn, constituted the somewhat rare tenure of bookland. With the consent of his Witan the king would even ' book ' land to him.self and thus perhaps make provision for his own young children whom the REVENUE AND TAXATION 493 succession of his brother to the throne might otherwise leave insufficiently provided for. But at the Norman Conquest, or at any rate by the time of Domesday, the whole country in theory passed into the estate of the Crown. Then the royal demesne was composed of those estates which in theory had not been granted away by the Crown. In the record of Domes- day, these comprised over 1,400 manors. Nor does his booking away of other lands seem to have deprived the king of the oldest of the royal rights over them — the ' feorm-fultum ' or right of sustenance for himself and his court on their progresses through the country. The king of Anglo-Saxon times may be regarded as a great landowner, moving from estate to estate and living on the profits. The Norman and Plantagenet kings were equally ubiquitous ; but their rents were taken largely in money, and the right of sustenance became the excuse for the hateful claims to purveyance and preemption. These will be mentioned later. For the present it must be remarked that, as soon as a discrimination begins to be made between items of expenditure, it is a recognized principle that the per- sonal expenditure of the court should be met out of the revenues from the royal demesne lands. And at first sight it would seem that this must have provided a more than adequate source. For not only did the rules of escheat and forfeiture supply a constant means of replenishing, if not of extending, the demesne lands of the Crown ; but from time to time individual kings made large additions. Henry IV brought with him the Lancastrian inheritance which even to the present day has remained apart from the general estate of the Crown.' ' Anson, By his confiscation of the lands of those monastic houses "• ^°4. which were connected with foreign orders (alien priories, as they were called), Henry V afforded a valuable precedent both for Wolsey's destruction of some of the smaller monas- teries and more especially for the sweeping act of Henry VIII. But fortunately for the liberties of the nation, almost from the first, the kings gave away with one hand what they had grasped with the other. From the time of Stephen onwards the accumulations and confiscations of the first three Norman kings were bestowed with lavish bounty on the royal favourites. As a consequence, the royal demesne diminished rather than increased, and, meanwhile, the expenses which it was intended 494 ENGLISH CONSTITUTIONAL HISTORY to cover grew continually. Under Edward I the maintenance of the royal household cost ^15,000. Under Edward III ^^25,000 was devoted to this charge out of a total expenditure of;^i5o,ooo. Under Richard II, with a slightly diminished revenue, the amount rose to ;;^45,ooo, and yet the king severely resented the remonstrance which was in consequence presented by the Commons. Under Henry IV the Lancastrian inheritance was whittled away in bribes to the great nobles who had recognized his title; and while the general revenue still declined, the court absorbed more than ^^50,000. It is not difficult to understand the constantly recurring cry that 'the king should live of his own.' And the reason of his in- ability to do so was rightly understood : for in all the popular risings of the Lancastrian and Yorkist times, such as those of the Percies in 1403, of Cade in 1450, and of Robin of Redes- dale in 1469, this demand was coupled with complaints against the royal councillors for mismanaging and misappropriating the royal revenues. The Crown did not seem capable of protecting itself in the matter, and several devices were resorted to in the interests of the true dignity and independence of the sovereign. It was not that the country grudged supplies to its rulers or wished to interfere unduly with their actions. A king who ministered to the glory of the land might go a long way in the direction of unconstitutional taxation before any serious dissatisfaction would arise. The complaints against Henry HI, Edward II, and Richard II were far more vehement than even against the wasteful Edward III. But the people were persuaded that the Crown was rich ; and, if in time of peace the means ordinarily to hand did not suffice to cover the expenses of government, the blame was laid on the extrava- gance of the royal household and the rapacity of the ministers and favourites, whom there were no means of checking by a proper audit. Thus 'the extravagance of the court was really only .... a colourable ground of complaint against an ^ S. C. H. otherwise intolerable administration.'^ But the evil was a § 285. serious one in itself, and attempts were made to meet it by stringent remedies. Setting aside the various devices — by 2 ji^^j election, oath, and sale of office — for ensuring the responsi- § 286. bility of ministers in the general conduct of the administration," REVENUE AND TAXATION 495 we may notice (a) the numerous attempts at resuinption of the royal demesne.' This was undertaken by so strong a ruler ' Plummei as Henry II, and in Henry Hi's reign the barons coupled ^'o>-tescuc, it with the banishment of his foreign favourites. The first .v. c. H. definite action of Parliament was in 1450, when, in order § 284. to recruit the slender resources of the Crown, an Act of Resumption annulled all grants of royal demesne made since the beginning of the current reign. This was repeated in 1455 and four times under Edward IV; but owing to the number of exemptions allowed from the operation of the Acts, the general effect seems to have been small. A more important, though not for some time more successful, method of restraint had for its object (/') the limitation of the king's power of alienating the royal revenues in the future.'-^ The "- Ibid. first attempt at this is found in the Ordinances of 131 1 which § ^^5- forbade any gift of land or crown property of any kind without consent of the Ordainers. The barons went even further, and subsequently put the king on an allowance of ;Q\o a day. 1315- Edward Hi's device of promoting and rewarding his favourites with the apparent approval of Parliament, prevented any attempt at regulation until the last year of his reign ; but on the accession of Richard II the projected reform of the 1376. Good Parliament was abandoned ; and, despite the appoint- ment of numerous commissions of reform in Parliament, nothing was done in the new reign. Among the charges against Richard was one of alienating the royal estates ; and on the accession of Henry IV several legislative attempts were made to check the power of the Crown in this respect. But these failed of effect ; for the courtiers made their own arrangements with the king, and the grants were filled with ' non obstante ' clauses. But, as in earlier days the numerous forfeitures and escheats had saved the Crown from complete poverty, so now the same result was produced by the royal ventures in trade and the revival of obsolete rights to which Edward IV and Henry VII had recourse, and more especially • by the enormous confiscation of monastic property. But the lavish and probably politic grants of Henry VIII, followed by the frequent sales, profitable under Queen Elizabeth and necessary under Charles I, together with the prodigality of Charles II, left the Crown as poor as ever. At length 496 ENGLISH CONSTITUTIONAL HISTORY ' Erskine May, i. 230. Fees and Fines. = S. C. 62, §51. 2 Jdid. 66, § 20. Purvey- ance. William Ill's unnecessary generosity to his personal friends seemed to call for the interference of Parliament ; and under his successor it was provided that no future lease of the crown land should be granted for more than forty-one years or the duration of three lives. Had this rule been put in force immediately after the Restoration, the entire Civil List of Queen Anne might have been provided out of the land revenues of the Crown.' § 73. Together with extensive landed possessions the Crown enjoyed a number of fees and fines levied in exercise of the royal prerogative. Among such was the king's share, as guardian of the peace, in the pi-ofifs of Justice in the local courts. In early days these, together with the rents of the royal demesne lands, were farmed by the sheriff of each shire. Under the head of fines may be enumerated the early fyrdwite - for non-attend- ance at the mustering of the local militia, and oferhyrnes ^ for contempt of court ; while with the Normans there was introduced an extensive system of composition for offences which left the offender at the mercy of the king. Under the same general head may be ranged the numerous payments for appointments to offices, which amounted to a sale or at best a fine to ensure the good behaviour of the holder, and the grant of privileges and exemptions of all kinds, such as charters to towns, the tolls of markets, fords and ports ; while the sum total was swollen by the addition of such minor and miscellaneous profits as would arise from the produce of wrecks, the claim to treasure trove, the right to work mines or at least to a royalty on their proceeds. The greater number of these rights were enjoyed by the Crown without any kind of protest. There was, however, one class of these privileges which was especially obnoxious to the people. These were comprised under the general term ' Purveyance., zx\^\sQXQ connected with the commissariat of the Court on its journeys through the country. Originally, this duty of hospitium had been discharged by voluntary gifts to the chief on his journeys ; but the constant demands on this score may have caused such commutation of the liability as is described in the frequent claim to a ' firma unius noctis.' Yet no commutation could deprive the king of his undefined right of exaction to meet unexpected necessities. The wants of the REVENUE AND TAXATION 497 Court as it moved were supplied by purveyors who would occasionally obtain what they needed by simple seizure or caption, but more comnioifiy by preemption or compulsory purchase at prices fixed by the purveyors themselves. The value and consequent oppressiveness of the right are proved by the constant legislation by which the Commons strove to check its exercise. In the first Parliament of James I it was declared that there were thirty-six statutes in restraint of the right. Of these no less than ten were passed under Edward III, by the last of which the use of purveyance was i g -g^ limited to the personal wants of the king and queen. ^ III. c. 2. The future history of purveyance is bound up with that of Feudal the Feudal Dues. The history of the gradual fixing of the Dues, relief has been already traced. It has also been shown that the levy of feudal aids was early limited to three occasions. But that this was a restriction on the general right is proved by the twelfth clause of Magna Carta, which forbids the levy of any aid other than the three usual aids without consent of the Commune Concilium, and at the same time enjoins that even these three should be ' reasonable.' ^ The vagueness of '" ^- C- 298. this epithet was corrected in the Statute of Westminster I, 1275. which fi^ed the aids exacted on the occasion of the knighting of a son and the marriage of a daughter at twenty shillings for each knight's fee. In the Confirmatio Cartarum the king was 1297. made to repeat the promise of the Charter itself ; and a more stringent provision was embodied in a statute of 134O to the effect that the various classes of the community should not ' be from henceforth charged nor grieved to make any aid or to sustain charge if it be not by common assent of . . . Parliament.'" But whatever may have been the view of the 3 j^ E(Jw. Commons, the king did not regard it as within their power, if HI- st. 2. indeed it was within their meaning, to curb his feudal rights ; for not only did he exact an aid for the knighting of his eldest 1346. son, but, in direct defiance of the Statute of Westminster I, he took it at twice the usual rate. But the feudal aids were passing away as methods of raising money. For more than a century and a half after the Black Prince no king's eldest son was knighted in the lifetime of his father, while on the marriage of Henry TV's eldest daughter to the Duke of Bavaria no claim to a feudal aid was made. The aids were, 2 K I 498 ENGLISH CONSTITUTIONAL HISTORY however, useful weapons in the hands of a rapacious king for obtaining extra grants from his subjects. For this purpose 1503. they were revived by Henry VII, who, although his eldest son was just dead and his eldest daughter Margaret was already married to the king of Scotland, levied by consent of Parliament an aid which produced more than ;^3o,ooo, and which was paid by socage and copyhold tenants as well as by those of knightly rank. The other feudal payments had continued to be exacted, and brought in an appreciable annual income to the Crown. Henry VIII, acting on the hint given by his father, systematized all the feudal rights of the Crown under a special Court of Wards. It did not matter that the feudal army had completely disappeared, and that with it had gone every reason for the maintenance of such a Court. But other influences were at work to destroy a system which was at once antiquated and obnoxious. The permanent revenue of the Crown was seriously reduced by the fall in the value of silver, which followed the opening of the American mines. The financiers of the seventeenth century had, therefore, to discover some source of revenue which would yield a regular income sufficient to meet the continually growing needs of government. The first which occurred to them was a commutation of the old royal and feudal rights of the Crown, which were so lucrative and yet so unmeaning. These rights included purveyance and the feudal dues, each of which needed separate treatment. In the case of purveyance the Commons desired merely to do away with ' Cf. the illegal extensions of the system ; ^ whereas in the case of Prothero, ^y^^ feudal dues they aimed at destroying a whole system which, while it lasted, was strictly within the letter of the law. The "^ I6id. 291. first debate on the matter in the first Parliament of James I'^ was quashed by the Lords, who denied that the feudal rights concerned any but themselves. But in 1609 James took an aid for the knighting of his eldest son, ' which amounted to a tax of five per cent, on the yearly value of all land held of ^ /did. Ixxi. the king, whether by military tenure or by socage.'^ The irritation that must have been caused by 'its concomitant inquiries and opportunities for extortion and jobbery ' brought matters to a head. A renewal of negotiations ended in an agreement for the surrender of the royal claims, including REVENUE AND TAXATION 499 purveyance, in return for a fixed sum of ^200,000 a year.^ ' Prothero, An exception, however, was made in the case of the three ^^•^' ~^^' occasional aids which might still be taken at a fixed rate. But before the agreement became law both parties had changed their minds. The king thojaght that he would not gain much by the bargain, while the Commons feared the addition of so large a sum to the royal revenue. Consequently, the Great Contract, as the bargain was called, fell through, and it was only at the Restoration that feudal tenure and all that it involved, together with purveyance and its accom- paniment preemption, was finally abolished, and other means were found of increasing the royal revenues. The first of these means was an excise on beer and other Substitutes liquors^ which was avowedly intended to take the place of jf"" feudal the surrendered royal and feudal dues. It has been usual to i^) Excise stigmatize the selfishness of the landowners who thus sub- on beer. stituted for the feudal dues which fell only on themselves, a class of taxes which fell upon the general public. But apart from the political inadvisability of alienating the landowning interest from the newly established government, it is to be considered that the tax which was at first projected, a general land-tax, would have been offensive to the socage and copyhold tenants who had not been liable for feudal dues ; while a tax levied under a different name from those lands alone which had paid feudal charges, would have borne unfairly on those who had bought the lands under the Commonwealth on the understanding that all such liabilities had been abolished.- ^ Rogers, The general history of Excise will be dealt with under the / f"'^ r head of Taxation. Here it shall be said merely that this Hist. 154. excise was made part of the hereditary revenue of the Crown ; in 1736 it was commuted for a fixed sum of ^^70,000, and at the accession of George III it was merged in the general revenue of the country. In 1663, to this excise were added the revenues of the Post {b) Post Office. This had been set on foot by James I for the con- ^^^^• venience of English merchants corresponding with foreign countries, and was made available by Charles I for the trans- 1635. mission of internal correspondence in England and Scotland. During the Commonwealth it became a source of revenue, and in 1659 was farmed out for ^14,000. At the Restoration it 500 ENGLISH CONSTITUTIONAL HISTORY was organized by statute and obtained the monopoly of 4etter carrying for hire, the profits of which were made part of the hereditary revenues of the Crown. It was at first farmed out for ;^2 1,500, but the profits rapidly increased. At the end of William Ill's reign it brought in p^75,ooo ; under Anne and George I this had risen to over ;;r9o,ooo; and, while in 17 10 the proceeds were divided between the king's Civil List and general expenditure, after 1760 the w^iole was merged under the latter head. § 74. Such were the hereditary revenues of the Crown after the Restoration. To these were added certain grants of the nature of taxes for the life of the reigning king, such as the old tonnage and poundage now reorganized, and a new temporary excise on wine at the same rate as the hereditary excise. With the proceeds of this hereditary revenue and these permanent taxes the king was still expected to keep up the royal state, the civil government, and all that was necessary for the defence of the kingdom in time of peace. In fact this The was the true Civil List. The items under this head at the pj.^^^y. disposal of Charles I had realized an average annual sum of one million pounds, and experience had proved it to be insufficient. It was calculated that the sources set apart at the Restoration would raise the sum total to ^1,200,000. At first they did not yield so much ; but eventually, owing to the improvement in trade and a better management of the customs, they so far passed the estimates that James II en- joyed from these sources an average income of ;^i,5oo,ooo. But after the Revolution the use to which Charles II and his brother had put the money granted caused Parliament, practically for the first time, to attempt some definite limitation to the personal expenditure of the Crown. Thus the sources of income set apart at the accession of William and Mary were calculated to produce ;!^i, 200,000 ; and of this the hereditary revenues and the excise duties, together estimated at ^700,000, were appropriated to the civil expenditure of the Crown. This included not only the personal expenses of the Court, but the salaries of ambassadors, judges, and the civil service generally, together with all current ])ensions. It seems, however, that the sovereigns, being thus circumscribed in their revenue, refused to consider themselves obliged to REVENUE AND TAXATION 50f restrain their expenditure within the amount appropriated to the Civil List. Thus, down to the accession of George II these sources reahzed an average of ;^7oo,ooo a year; but both Anne and George I res])eclively appHed to Padiament to discharge more than one milHon pounds' worth of debts. The Civil List of George II was guaranteed at a minimum amount of ^800,000 ; for, any deficiency in the usual sources was to be met by a parliamentary grant : but even with this increase Parliament was called on to release the king from a debt of ^450,000. But with the accession of George III Parliament for the first time obtained acknowledgement of its power of direct control over the personal expenditure of the Crown. Hitherto, since the Revolution, Parliament had guaranteed to the Crown certain branches of revenue which were calculated to produce an adequate income. Now George III surrendered the crown lands, the excise, and the Post Office in return for a definite sum of ;^8oo,ooo a year, which in 1777 was raised to ^900,000. But out of this were still paid the salaries of ambassadors, judges, and civil servants, annuities to members of the royal family, and pensions for public services. At the same time, there remained at the absolute disposal of the Crown certain other sources of revenue, such as the hereditary revenues of Scotland and Ireland. Yet this did not preclude occasional applications to Parliament for the discharge of debts which during the reign amounted to ;^3, 500,000. Subsequent reform was in two directions. On the one side, most of those sources of revenue which remained beyond the control of Parliament were surrendered by the Crown ; on the other side, the sum voted by Parliament was gradually relieved of all burdens except those immediately connected with the maintenance of the personal dignity of the monarch. The first step in this direction was taken by Lord Rockingham's Act of 1782, by which the Civil List was divided into eight 22 Geo. III. classes and the expenditure was to be according to a prescribed ^- ^^■ order. It was a natural step to transfer such of these classes as did not concern the personal estate of the Crown, to the Consolidated Fund, out of which, since 1787, the expenses of the civil government of the country are defrayed. This was of course accompanied by a 'pro tanto ' diminution of the 502 ENGLISH CONSTITUTIONAL HISTORY sum voted to the Crown. Thus in 1816 various payments to members of the royal family were so disposed of. Again, on the accession of William IV, the vote of a smaller Civil List of ^510,000 was accompanied by the withdrawal of nearly all public charges, except a pension list of ;^7 5,000 and a sum for secret service of ;^23,ooo. At the same time, George TV's surrender of the hereditary revenues of Ireland and of all that the Crown still kept under the same title from England, was followed by William IV's surrender of the hereditary revenues of Scotland and some smaller sources of independent income. On the accession of Queen Victoria, the Civil List was reduced to ;^385,ooo distributed under six heads of expenditure, but for the present king it has been raised to ^^470,000. The sole extra expense with which it is now charged is a diminished pension list from which fresh annual grants may be made of no more than ;^i,200. The sole extraneous source of income at the disposal of the sovereign is the Duchy of Lancaster, which has been jealously kept apart from the crown lands. This now yields about ^60,000 a year. At the same time, it is noteworthy that the crown lands themselves, which at the time of their surrender produced little more than ;^6,ooo, now add no less than ;!^45 0,000 to the revenue of the country. It is probably no exaggeration to say that these apparent encroachments, even upon the private expenditure of the Crown, have in reality M^y,T'^ added to its true dignity and more than ever conciliated the 232-247. confidence and affections of the people.^ Early forms § 75. The earliest form of taxation was probably the of taxation. ^^^^^^^^^^_ j|. ^^g levied first in 991 by /Ethelred at the sug- gestion of Archbishop Sigeric and with consent of the Witan and then at intervals up to the reign of Eadward the Confessor by whom it was abolished. It was revived by William I in 1084, and remained a frequent exaction for about eighty years. It was a land-tax taken, under the Ando-Saxon§j at the rate~oF two shillings on ever y hide. William I not only robbed it ot its meaning by making it a regular levy, but trebled the amount which in future levies was generally taken at six shillings on the hide. It was a crushing burden on the smaller folk, and substantially helped both to reduce the pre- Norman ceorl to the post-Conquest villanus and to the universal establishment of a manorial system. Now, according to the ^ Erskine REVENUE AND TAXATION 503 feudal theory of taxation, the taxpayer made a voluntary offering to relieve the temporary necessities of his lord, and thus his promise of the tax bound only the individual who made it. Hence all opposition to taxation was at first personal. It is true that Henry I speaks of ' the aid which my barons gave me ' and, in his order for holding the local courts, promises to sum- mon these courts if his necessities require it.^ Thus some form 1 s. C. 104. of grant may have been observed ; but there is no account of any definite vote of taxes or of a discussion over a money grant until the end of the reign of Richard I. The feudal theory of taxation also involved the necessity of its levy upon land. The unit was the somewhat indefinite hide ; and since the chief object of Domesday had probably been to obtain a basis 'for the fair assessment of the danegeld, in cases of dispute Domesday formed the evidence of the liabilities of an estate. The reign of Henry H inaugurated new principles in Changes taxation as in so much else. In the first place, the exemptions ""^er claimed by the Church lands from the liabilities of feudal tenure were met by levying from them a commutation for personal service in the form of scutage. Secondly, the basis of feudal taxation in general shifted from the h ide, which had been common to feudal and national taxation alike, to the more special ratings on the knight's fe e ; while, under Richard I, even for national levies upon land the hide gave way to the more definite carucate of a hundred acres. Finally, the growing wealth of the country suggested the accumulated merchandise as a fit subject for taxation. Thus personal property no less than real property became contributory to the needs of the state. These changes produced two results. The witness of Domesday had become insufficient as a method of ultimate assessment ; and thus, while the feudal taxes were left to the statement of the individual, for personal property and even for real property in the carucage, the returns of the individual payer were liable to be submitted to the decision of a small committee or jury of his neighbours. Again, the first departure from the individual theory of taxation was made in the application of special taxes to each separate class Class taxa- of the community. Thus by the Charter of Henry I the li'^"- feudal class had been exempted from every demand except 504 ENGLISH CONSTITUTIONAL HISTORY ^ .S". C. loi, personal service^ — an exemption, however, which only applied § "• to the levy of special aids and not to the ordinary feudal dues. They were brought under contribution by an extension of the levy of scutage. Again, from all landowners would be required the donum, auxilium or carucage which had taken the place of danegeld ; and upon the same principle tallage was levied on all burgage tenants. The application of the principle of class taxation was an important step in constitutional advance ; for, it encouraged the growth of a system of estates, each responsible for its own particular burden and distinguished by the interests of its own particular class. Tenants It has been shown elsewhere that the full number of knights by lvni<,'ht- -^y^om a great estate had to furnish, was seldom to be found service , . . . enfeoffed or provided with the requisite amount of land. For those which were not enfeoffed but remained, in the technical phrase, ' charged on the demesne,' the lord had to provide substitutes. It has been thought that scutage may have represented originally the sum paid to a substitute for a knight, and thus the royal demand involved merely a change in the mode of payment — to the king instead of to a substitute. However that may be, there w^ere reasons why the kings should wish to get rid of the feudal levy, and even the Norman kings may have begun the system of taking payments in lieu of personal service. Traces of such a payment are found as early as the reign of Henry I, although there seems to be no definite mention of it until 1156. In that year Henry II prepared an expedition to Wales and met the unwillingness of the great ecclesiastical tenants to supply military service, by the demand that they should pay instead, at the rate of twenty shillings on each knight's fee for which service was due. In 11 59 the same principle was extended ''■ S. C. 129. to the agrarii milites, as the chronicler describes them.- This Rob. de time the rate of payment was two marks from each knight's fee, and the number thus compounded for seems to have been 1280. Since the service was still exacted from capitaks barones this would represent only a small portion of the whole * Round, available levy.-^ Now, on strictly feudal principles, as between Feudal j.j^g j^j^^g ^^^ j^jg tenants-in-chief there could be no com- Etigland, . ° . ... . . . 280 mutation of military service. I he tenant-in-chief had either REVENUE AND TAXATION 505 to appear with his contingent when summoned, or after the campaign to pay whatever line the Barons of the Exchequer imposed upon a man who by his disobedience had merited the penalty of forfeiture. Thus the tenant-in-chief of the Crown did not pay scutage, but an amercement for neglect of duty. We have seen that the means by which the military liability of a great tenant-in-chief was actually discharged, were a matter of private arrangement on his part. But in England at least military service was a royal duty, and on this plea the Crown passed over the lord and took a scutage from the actual tenant-in-demesne by knight-service. But the scutage w^as not raised until the campaign was over, and the rate at which it was taken would probably be governed by the market price of men hired to do the service due from knight's fees which remained ' on the demesne.' The tenants, who found military service a great burden, made this practice of the king the foundation for a claim to pay scutage as their right rather than to serve in person. Their lords were gradually forced to assent, to hire substitutes to do the duty and to obtain permission from the king to recoup themselves by the levy of a scutage. Often, however, perhaps in a case where the tenant-in-chief had made default, the king would amerce the tenant-in-chief and take a scutage from his tenants by knight-service.^ It seems probable, then, that scutage 1 />. ami li/. applied to three classes of persons — to the smaller tenants- i- 245-254. in-chief of the Crown by knight-service, to the actually enfeoffed tenants by knight-service of tenants-in-chief, and to the whole military service of the ecclesiastical tenants-in-chief who found it increasingly expensive to hire knights. On the other hand, the great tenant-in-chief of the Crown — the baron proper — would himself go or be heavily amerced, and would take his proper contingent, which would, however, consist entirely of soldiers hired for the particular occasion. The rate of scutage seems to have varied from ten shillings, the demand in 1189, to three marks (i.e. forty shillings) from each knight's fee, and this larger sum became frequent under Henry III and the usual rate taken under Edward I. Mean- while, John's exaction of no less than ten scutages for abortive expeditions led to the provision in Magna Carta - that no ■-- s. C. 298, scutage should be taken except by leave of the 'Commune §12. 5o6 ENGLISH CONSTITUTIONAL HISTORY 1217. 1 5. C. 347, §44- 1661. Land- owners. - Round, Feudal England, 497- - i'. C. 254 : R, Hove- den, iii. 240. ■* Ibid. 257 Ibid. iv. 46. ' Ibid, 272 /ii?£^. iv. 107. Concilium regni.' But in the second reissue of the Charter by the barons under Henry III it was withdrawn in favour of a provision for taking scutage as it had been taken under Henry II. ^ But with the disuse of the feudal levy scutage tended to disappear. In process of time estates had been broken up, and the original liability for knights' fees had become divided. The trouble of collecting increased, while the excuse for it was slighter : at the same time new methods of taxation had been found more productive and less ob- noxious to those on whom scutage would have fallen. The result was that, although the liability to scutage was only abolished with the abolition of feudal tenure, yet after the reign of Edward I there are only two traces of it — in 1322 after Edward II's victory over his rebellious barons at Borough- bridge, when it was taken in the shape of amercements imposed on those who had refused to serve in the army defeated at Bannockburn ; and in 1385 when Richard II in view of an expedition remitted scutage as if it were a tax which he considered the king might still levy when he went to war in person. There was no levy of danegeld after 1162.- But there were occasional taxes called in general terms ' dona ' or 'auxilia,' and raised by separate negotiation between the officers of the Exchequer and each community of payers. These dona were reckoned, like danegeld, upon the hide. But the hide was a vague measurement ; for since it probably comprised only cultivated land, the area of assessment must have shifted continually, and the evidence of Domesday must have become increasingly untrustworthy. In T194, therefore, the place of the hide was taken by the more definite measure- ment of the carucate or ploughland of 100 acres. Like its predecessors, the new carucoge was intended to fall on the whole landowning class, and the rate was first fixed at the old amount of two shillings on each carucate.^ But the amount was variable ; for in 1 1 98 each carucate paid five shillings'* and in 1200 three shillings.'^ Meanwhile, in 11 98 an important change took place in the method of assessment, and for the statement of the individual payer was substituted the sworn evidence of a local jury. Carucage may be traced into the early years of Henry III, after which it seems to have disappeared. REVENUE AND TAXATION 507 Together with the danegeld from the country was exacted Royal the AuxiHum burgi from the towns. This continued under ^^"^"^s"^- the more common name of Tallage, and formed an occasional tax nominally extending in amount to one-tenth of the goods of those entitled to pay. But the towns were regarded as in the demesne of some lord ; and while they all contributed their share to the ferm of the shire, the king could only levy the further impost of tallage on such as were in the ancient demesne of the Crown. For the claim to take this tax seems to have rested on the plea that the inhabitants of towns were holders by villan tenure. Thus other lords had in this matter the same rights as the king, and the only restraint on their power seems to have been the understanding that they should not tallage their lands unless the king tallaged the demesne of the Crown. Some foreign expedition seems to have been considered necessary as an excuse for the levy, and the demand of a sum from London was followed by a visit of the itinerant justices to the other towns in ancient demesne, which were assessed on the basis of the grant obtained from the metro- polis. The name 'tallage' first appears under Henry II, and the tax was continued under his successors. It was perhaps the only tax which John did not exact oppressively ; for he desired to win the support of the tenants of the crown lands against the barons. The barons, however, seem to have de- sired to limit the royal right of tallage, but to have failed in their attempts ; for among the articles presented for the king's signature at Runnymede, the one restricting the levy of scutage or aid to the permission of the Commune Concilium, demands a similar restriction in the case of tallages and other exactions from the citizens of London;^ while in the corre- ^ .5". C. 293, sponding clause of the Charter, as it was actually confirmed, § 32- all mention of the tallage disappears.-' Under Henry III "- Ibid. 298, tallages were frequent, but the oppressiveness seems often to § '-• have been lessened by exacting them, like the later benevo- lences, only from the richer citizens. Tallage, however, followed the taxes already mentioned, and gradually fell into disuse. It is sometimes supposed to have been forbidden by the Confirmatio Cartarum ; but the Latin version of that 1297. document, which bears the significant title De tallagio non concedendo, although it was treated by the judges in the 508 ENGLISH CONSTITUTIONAL HISTORY Hampden case under Charles I as a statute, was merely a chronicler's resume of the intention of the French docu- ment. In view of some of his later answers to remonstrances from Parliament, it even seems doubtful whether the king considered that the comprehensive statute of 1340 included tallage among its prohibited methods of taxation. However that may be, there are only three known occasions after 1297 on which a tallage was imposed:— by Edward I himself in 1304, when it met with no complaint; in 131 2, when it was strenuously but vainly resisted by London and Bristol ; and in 1332, when Edward HI accepted in its place a grant of ' S. C. H. a tenth-and-fifteenth from Parliament.^ The fact was that § ^75- the changed method of taxation consequent on the formation of a Parliament of Estates, removed any claim of the king or of the lords to levy such special contributions from the towns in their demesne. For, after 1283 separate negotiations by officials of the Exchequer with the various tax-paying com- munities practically ceased in favour of a general grant made 'Ibid. in Parliament;- and the principle of tallage only afforded an § 222. extra plea to those towns which, in their desire to escape representation, vainly tried to urge that they were not in ancient demesne of the Crown. Thus, after the summons of representatives of the boroughs to Parliament the king's reten- tion of tallage was an illogical proceeding, if, as seems natural, he desired to levy a tax upon the whole burgher population and not merely on that portion of it which dwelt on the royal demesne. National § 76. The disappearance of these class taxes of a feudal taxation. ^^^ brings us to the period of national taxation. At the outset it will be convenient to note two temporary methods of taxation which never passed beyond the stage of experiment In the 1377. last Parliament of the important reign of Edward III the king's ministers suggested to the Commons, as one among several alternative methods of taxation, the levy of a groat on every hearth. Ultimately both Parliament and Convocation granted a poll-tax of a groat a head on all persons over sixteen years of age, and this form of taxation was repeated in 1379 and 1380, witli the important difference that in both cases it was graduated. Thus, in 1379 the scale descended from the Duke of Lancaster, who paid ten marks, down to the poorest REVENUE AND TAXATION 509 person, whose contribution was a groat; while in 1380 the maximum difference between payers was on the much smaller proportion of sixty groats to three.^ It was this latter levy ' Dowell, which formed at any rate the excuse for the Peasant Revolt ^,"'^- "f of 1 38 1 ; and consequently, this method of taxation practically'- ;_ ^-j-g. disappears until after the Restoration. It was exacted on three ^ ibid. occasions under Charles II, and regularly after the Revolution "'• 3-4- from 1689 to 1698. The last grant ran until 1706, after which the tax was not renewed. It was not a popular tax, although under Richard II it had served the useful purpose of bringing home to every individual in the kingdom the misdeeds of the royal ministers. Nor was the similar levy of the hearth money any more suc- cessful. The principle had been long familiar in the payment of Peter's Pence. This was a tax of a penny on every hearth, which from the beginning of the tenth century formed an annual contribution to the Pope, but which at some period before the thirteenth century was compounded for a lump sum of rather more than j£,2oo. The suggestion that Parliament should apply such a tax in 1377 did not meet with favour ; nor is there mention of it until after the Restoration, when, from 1662 until the Revolution, a levy was made of two shillings on every hearth or stove. The inquisitorial nature of the tax, which would necessarily lead to the domiciliary visits of the collectors, no doubt accounts for its unpopularity and consequent discon- :; /^^-^^ jjj tinuance after the Revolution. ^ 165-7. The more permanent forms of national taxation may be divided under the two heads oi direct., that is, paid immediately by the contributor ; and indirect, that is, falling only ultimately on the person who is intended to pay it. Under the first head Levied will be mentioned successively the various attempts made from c^"'^ctly. the fourteenth to the eighteenth centuries to levy a tax on all real and personal property in the country. This required for its efficiency a constant reassessment, a difficulty which was no doubt the reason why the Tenth-and-fiftecnth, the Subsidy, and the Property, or rather Land Tax, each in turn became settled at a fixed amount and levied on an old assessment. Thus with the lapse of time they decreased in value, and after attempts to supplement them, they were abolished in favour of more productive methods. The Property Tax still drags 5IO ENGLISH CONSTITUTIONAL HISTORY out an unpopular existence under the more appropriate name of the Land Tax ; but for the last century the real direct tax lias been the Income Tax. First among the indirect taxes stand the Customs with their long, intricate, and interesting history ; to them, since the Restoration, has been added the Excise ; and since the Revolution, Stamp duties of multifarious kinds — although both these include payments which come under the head of direct as well as indirect taxes. Tax on The germ of national as opposed to feudal forms of taxation Moveables, j^^sj- j^g looked for in the reign of Henry II. The growing wealth of the country and the close contact with the continent induced Henry to attempt to bring under contribution incomes which were derived from other sources than land. Indirectly this attempt was made as early as 1181, when, by the Assize of Arms, all freemen were directed to have in their possession 1 9 Q 1C4, arms corresponding to the amount of their income.^ The first §§ 1-3- instance of a direct contribution on this basis is the Saladin Tithe of 1 1 88, in which a tenth part reddituutn et mobilhivi, that is, of rents from land and of income from merchandise, was levied "^ Ibid. 160. from every one in support of the third crusade." It was not until all the financial resources of the country were called out for the payment of Richard I's ransom, that the justiciar, Hubert Walter, Archbishop of Canterbury, first applied this ^ Ibid. 252 ; method of taxation for national purposes.-' In II93, besides R- Hoye- the payment of the aid by the tenants-in-chief of the Crown, 2^"' "'■ one-fourth not only of their rents, but also of their * moveables,' was demanded from clergy and laity alike. In fact, whatever may have been Henry II's intention in its first devising, this tax, when it emerged as a regular form of levy, consisted of fractional parts, varying from one-fourth to one-fortieth levied on rents from land and incomes from personal property. As the fairness of an individual return could scarcely be expected in the computation of personal property, the assessment was made by a sworn committee of neighbours. But on the other hand, the undue pressure of a tax so jealously guarded from evasion was mitigated by the allowance of numerous exemptions. The exemptions applied sometimes to goods of a particular class, but latterly and more rationally to the possessors of all goods below a certain value. Thus, while from the collection of a thirtieth in 1237 were excepted all goods applied to eccle- REVENUE AND TAXATION 51I siastical uses, horses used for various purposes, the precious metals and household utensils;' in 1276 the exemption ap- ^- <^- 366. plied to all persons not having goods of the value of fifteen "^ /iid 431 ; shillings.- The history of the grant of the tax may be ^""' divided into four periods. For the first century of its levy it 120. was negotiated separately with each shire by the officials of 1 193.1290. the Exchequer. After 1290 it became a grant made by the 1290-1332. assembled Parliament; but until 1334- each Estate voted its own liabilities and in a different proportion to the rest. For the purpose of money grants, these Estates were often four — clergy (who, however, actually voted their share in Convocations), lay barons, knights of the shire, and burgesses. But the knights and burgesses coalesced, and, as being the poorer and more numerous portion of the taxpayers, claimed the right of deciding the amount of a grant. The old distinction between Estates gave way to a new distinction based on the difference between town and country or, roughly, between real and personal property ; and while the ordinary proportion granted for dwellers outside a chartered town was one-fifteenth, one-tenth was the settled share of inhabitants of a parliamentary borough. A further change followed almost immediately upon the ac- ceptance of these rates ; for, in consequence of the rigid exaction of the tenth-and-fifteenth in 1332, it was arranged that a further increase should be avoided by taking the contribution of each community for the future at the actual amount for which it had been assessed in that year. Thus the te7ith-and- Tenth-and- fifteenth became a fixed sum of about ^39,000 ; and Parliament Fifteenth, granted it as such, sometimes voting two or more tenths-and- 1332-1514. fifteenths, sometimes adding a half tenth-and-fifteenth. Now, not only had the tenth-and-fifteenth become a fixed sum ; but during the fifteenth century it tended to decrease in amount. From the early years of Henry VI onwards. Parliament in voting the supplies seems to have found it necessary to grant remis- sions of definite sums, and to specify for exemption particular towns. Thus in 1433, ^4,000 were remitted from the tenth- and-fifteenth voted, and Great Yarmouth and Lincoln were mentioned for exemption. Sometimes the list included a larger number of towns, of which some were wholly, but others only partially, exempted. The effect of these remissions has been minimized by calling theni ' no more than the reduction to 512 ENGLISH CONSTITUTIONAL HISTORY 1 Ashley, Econ. Hist. vol. i. pt. ii, 51- ^Cf.Dowell i. III. 1514-1624. Subsidy. •* Prothero, Ixxxi. ■* Cunning- ham, Eiti^. /ltd. and Com. i, 487. a regular system of a yiractice which had prevailed in an irregular and uncertain fashion before ; ' ^ but it seems scarcely true that 'the amount was not a large one,' and in any case, the reduction of such occasional remissions to a system would permanently decrease the sum total on which calculations of grants were based.- The result was that the tenth-and- fifteenth by no means represented the taxable capacity of the country. It had been originally intended that there should be jDeriodical re-assessments of the property subject to the tax ; but this design had been frustrated by the practical commuta- tion of the tax and by the exemptions granted to particular communities. Under the now antiquated assessment the decaying grant must have fallen most unfairly and capriciously ; and it was natural that with the return of ]:)rosperity the Tudors should at any rate attempt to find some regular method of supplementing it. This was found in the subsidy, which for more than a century ran side by side with the old tenth- and-fifteenth and gradually superseded it. The last instance of the old form of taxation is in 1624, the last Parliament of James I. The first instance of the grant of a Subsidy is in 1514- when, to supply the deficit caused by Henry VII I's expedition to France in the previous year, the Commons granted a general subsidy of sixpence in the pound. The amount varied from time to time ; but the usual rate became 2s. Sd. in the pound or two-tenths on moveables, and 4.^. in the pound or two- fifteenths on the yearly value of land.'' The subsidy, however, followed the same course as the tenth-and-fifteenth. In order to keep it a fair levy a periodical re-assessment would have been needed. But ' Englishmen have apparently always objected to inquisitorial levies based on attempts to find out what their actual possessions amount to, and greatly prefer to pay a fixed sum.''* Consequently, before the end of the Tudor era a subsidy came to be based upon the payments made at the last levy ; and, although it was never reduced so completely as the tenth-and-fifteenth, to a definite amount irrespective of the value of the property of which it was supposed to be a proportion, yet a subsidy came to denote a sum of about ^^80,000. It was levied on all kinds of property and was raised under the superintendence of royal REVENUE AND TAXATION 51J commissioners and not, like the tenth-ancl-fifteenth, by col- lectors appointed by the local member of Parliament. But although every precaution was taken to make it comprehensive, the actual amount tended to decline. For, such assessment as there was seems to have been carried out in so unfair or at the best so careless a manner that poor and wealthy paid a like amount. Meanwhile the clergy continued to tax themselves apart, although after 1533 their grant had to be confirmed by the Crown in Parliament. During the Commonwealth the subsidy was abandoned in favour of more lucrative modes of raising money, and on its revival at the Restoration the lay and clerical subsidy together did not amount to more than ;^7 0,000. Whether this was the reason or not, the subsidy disajjpeared as a means of taxation, and by an in- formal agreement between the Chancellor and Archbishop Sheldon of Canterbury the clergy waived their privilege of voting their supplies separately in Convocation. 1664. It has been shown that royal revenues had not only proved inadequate under Charles I to meet the growing expenses of government, but that at the Restoration they were deliberately diminished by the surrender of the feudal incidents. Among the methods resorted to for their increase, two — the poll tax and hearth money — were of merely temporary interest. But Monthly meanwhile, the Commonwealth, borrowing largely from the ^ssess- o «_j ^ ^ iTient. Dutch, had introduced expedients which, despite the bitter outcry raised against them by the royalists on the ground of their excessive severity, were adopted at the Restoration by the ministers of Charles II. The chief of these expedients were the excise and the monthly assessments. Of these the Assessi?t€nt^ was merely the Tudor subsidy levied in the ] Dowell, strictest possible manner : for, the sum required was settled "'■ 7"" and demanded month by month, the occupier was responsible for the payment, a proportion was assigned to each district and was taken on an official assessment of the actual value of a man's possessions. The result was a general pressure which fell more severely on all owners of property in the country than the mo.st unconstitutional levies of the Stuart kings. No doubt the consequent discontent was partly accountable for the reaction which ended in the Restoration : but the best testimony to the ability of the parliamentary 2 L 514 ENGLISH CONSTITUTIONAL HISTORY methods of finance is found in their subsequent adoption by the royahsts. The assessment took the place of the subsidy ; but a short experience seemed to show that, however well it might succeed as a temporary method, the continual re- assessment was a difficult matter. The assessment became careless ; it was complained that personal property, which would of course be the more difficult to estimate, did not pay its fair share of the whole ; and thus, although the amount produced was certainly greater than that yielded by the sub- sidy, it was not so much greater as to encourage the financiers of the Revolution to be content with it as a permanent method. Indeed, the last levy of the assessment was in 1691 ; and in the next year came the last attempt ' to lay a fixed and « permanent charge upon all property, real and personal.' This Land Tax. Property Tax, as it was intended to be, was a subsidy of 4s. in the pound on land, offices, and personal property. But the assessments still continued so careless that the yield of the tax decreased with each year, until in 1697 the ministers, falling back on the assessment of 1692, calculated that the rate of is. in the pound on that assessment would produce nearly ;^5oo,ooo, and thus turned the Property Tax, like the tenth-and-fifteenth and the subsidy before it, into a fixed sum. To make the likeness complete, this sum was ap- portioned among the towns and counties at a definite amount. This last attempt at the taxation of all property contained every element of injustice. Provision had originally been made for the assessment of personal property and offices in order that their owners should contribute to the fixed amount ; but since personal property is continually shifting, while the value and ownership of land can be ascertained at any moment, and since it had been provided that any deficiency should be met by an extra levy on the land, the death of the original payers of quotas on personal property was followed by the levy of the whole sum from the land alone. The intended Property Tax thus became the Land Tax. But even as a land tax it was unfair ; for, despite an attempt at the Restoration to adopt the carefully made assessment for the levy of ship-money, the usual basis of assessment was that made under the Commonwealth, in which the devotion REVENUE AND TAXATION 515 of the home counties to the parliamentary cause placed the burden of the tax on them. This they continued to bear, despite the fact asserted by an influential writer at the end of the seventeenth century, that the northern and western parts of England had grown proportionately wealthier since the Restoration. From 1697 to 1798 the Land Tax fluctuated between i.f. and 4s. in the pound, being calculated to produce half a million of money for every shilling rated. But in 1798 Pitt fixed it at a perpetual rate of 4s. in the pound, thus making it a permanent charge upon the land ; and as such it remains to the present day. The rate is levied on the old assessment of 1692; but by a provision of Pitt's Act much of it has been redeemed. At the same time, the charge upon personalty which had fallen into complete disuse, was made a separate tax annually granted ; but it produced so little that in 1833 it was repealed. The tax on offices, which was also a part of the original grant of 1692, was not finally 1 Dowell, abandoned until 1876.' iii- 81-91. By this time it must have been evident to financiers that income the perpetual re-assessment necessary for the direct taxation of Tax. property presented insurmountable difficulties. Direct taxation, therefore, takes a different form, and Pitt inaugurated the Incotne and Property Tax, so familiar at the present day. A precedent for such a tax was to be found in the fifteenth century. We may set aside as irregular the cases of 1382, when the ' landowners ' taxed themselves on the plea of the poverty of the country,-' and of 1404, when the lords temporal 2 Dowell granted a special tax of five per cent, from all those whose '• 104. incomes were over 500 marks a year."* But in 1435 and :i /^,-^ again in 1450, a graduated tax on incomes derived from fixed i. 106. sources formed part of the ordinary parliamentary grant. In the former year the rates were 6d. from incomes between ;^5 and ^100 ; Zd. from those between ^100 and ^400, and 2s. on all those above that amount."* Ifi 1450 the taxable 4 /^/^_ unit was lower, being 6d. on all between 20^-. and ^200, i. 113. IS. between £20 and ;;^2oo, and 2s. on all above p/^200.'^ r. /^/^^_ There seem to be no farther instances of this tax until Pitt i- 316. imposed it in 1799- Now, while leaving incomes under ^60 1799.1815. entirely free, he made it a graduated tax on those between ;£6o and ^200, and a tax of ten per cent, or 2s. in the 5i6 ENGLISH CONSTITUTIONAL HISTORY 1802. 1 Dowell, iii. 92-112. Table in IVhita/jcrs Almanack. pound on all incomes above ;^2oo. After the Peace of Amiens the tax was repealed by Addington ; but on the re- newal of war in the following year it was revived at the rate of five per cent, on all incomes of £,'i-'^o and beyond. The sources of income were now classed under five separate schedules, and the yield of the tax was about six millions a year. It continued and was increased from time to time until 1 81 5, when the close of the war once more removed the excuse for its imposition. But in 1842, when Sir Robert Peel took office after a series of deficits, some strong financial reforms were necessary. These chiefly took the shape of a gradual reduction of the heavy and multifarious customs duties. It was necessary to help the government to tide over the time until the anticipated increase of trade should give back to the revenue in other ways the amount of customs so surrendered. For this purpose Peel revived the Income Tax at id. in the pound for a period of three or perhaps five years, allowing total exemption on all incomes under ^150. But in 1845 the tax was renewed for another period, and, despite the repeated assertions of its temporary nature by successive Chancellors of the Exchequer, it has never been repealed. Until 1888 the rate varied almost from year to year, rising as high as \s. 4^. in 1855-6, and falling as low as 2d. in the pound in 1874-5. From time to time slight changes have been made in the amount of incomes subject to abatement or exemption from the tax. Thus from 1863-187 1 all in- comes under ;!^ 100 a year were exempt; while from incomes under ;!^2oo an abatement of ;;^6o was allowed, and the tax was taken on the remaining ;^i4o. In 1872 the abatement was extended to ;£So out of incomes under ^300; in 1876 exemption was extended to incomes under ;^i5o and an abatement of ;!^i2o to incomes under ^400 ;i in 1894 the exemption was raised to incomes of ;^i6o, and two scales of abatement were allowed; while, finally, in 1899 four scales of abatement affected incomes under ^700 a year.- At its original re-imposition in 1842 the intrinsic unfairness of a tax which treated precarious and certain incomes alike was widely felt ; but in view of the necessity of doing something quickly to restore the revenue to a healthy state, and on the under- standing that the tax was only to be a temporary expedient, REVENUE AND TAXATION 517 the objections were not pressed. It has now become prac- tically permanent, but not until 1894 ^^as anything done towards the realization of a scheme advocated by many politicians and economists, of a graduated income tax. .i^ 77. The history of indirect taxation opens with the intricate Levied in- and often obscure Customs duties. A twofold origin has been directly, assigned to this important portion of the revenue. On the Early his- one hand, the Customs are generally regarded as the toll which 1?*^^, ^"^ ... .°-,°. ... Customs the king, as representative of the nation in its intercourse Duties. with foreign countries, exacted from merchants in return for his protection, and as a licence to carry on their trade un- molested.^ A slightly different view has made the Customs ^ Dowell, the counterpart to Purveyance, springing from the prerogative '• 75- right of prise or arbitrary seizure of supplies with the double object of relieving the royal wants and watching over the native commerce.- Nothing, however, turns on the origin of '" Hubert . H 11 these dues. In either case these tolls or prises in kind were r^ t t probably arbitrary in amount ; and their history is that of their Revenue commutation for money payments or for definitely limited rf ^"s- i- amounts of the article on which they were levied. It is to ^ " be noted at the outset that, unlike our present system, duties were levied on goods exported as well as on foreign goods brought into the country. By the opening of the thirteenth century custom or agreement between the king's officers and the merchants had fixed these commutations. On the export of wool and leather, the staple commodities of the realm, a toll was taken of half a mark i6s. 8d.) on each sack or on 300 woolfells (i.e. fleeces or untanned hides), and a mark on a last or load of tanned hides or leather. On the import of wine the duties levied on native and on foreign merchants differed. From the former was taken the J^ecfa Prisa which, comprising the forfeiture of one or two casks from each cargo according to its size, practically amounted to a payment of one-tenth. But the alien merchant had t6 pay in money, and from him a toll was taken on each cask of the cargo at no settled rate. Beyond wool, leather and wine, all other articles, whether of import or export, still remained subject to the royal right of prisage, and were arbitrarily seized by the king's officers until they were redeemed by the traders, often at a ruinous cost. Sometimes it seems that even a licence over STAiEi^OSriAl. SCHOOL, 5l8 ENGLISH CONSTITUTIONAL HISTORY and above the settled toll was paid by an individual trader for leave to export or import a particular cargo. But all rates above the ordinary rates were known as mala iolia ; though, with the curious tendency of all mediaeval financial trans- actions to stereotype themselves, even this illegal impost was generally taken in the shape of an advance of the ordinary rate to 40.V. or three marks on the sack of wool. The attempts of the nation to check the arbitrary power of the Crown in the matter of the customs began with Magna Carta, when the antiquae et rectae consuetudines in all their vagueness were ^ .S'. C. allowed, and all mala tolta were forbidden.^ This does not, 301, §41. however, seem to have had much restraining influence; and in 1275, in the first Parliament of Edward I, the Magna aut antiqiia custuma on wool was settled at the rates mentioned above, and granted to the king as part of his ordinary revenue. Henceforth any maletolte became unconstitutional. The 1297. Confirmatio Cartarum attempted to check the royal right of arbitrary prisage by a clause which forbade, without consent of the realm, the levy of any aids, mises or prises except those 2 Ibid. already settled." Henceforth it was not possible for the king, 495. § 6. without flying in the face of Parliament, to place arbitrary dues upon English merchants. But nothing had been done to interfere with the exercise of the royal prerogative in its dealings with foreigners. To this the king now turned ; and in 1303, by the Carta Mercatoria conveying certain privileges to foreign merchants, Edward I obtained their assent to the Parva et nova custztma. These included an increase of fifty per cent, in the customs on wool and leather; so that an alien henceforth paid loj., where a denizen or native merchant paid ds. M. To this was added a settled duty of 2s. per tun on imported wine, which went by the name of butlcrage or tunnage, and 3) Poundage on both imports and exports at an ad valorem duty of five per cent. ; and {c) duties reckoned by the weight on woollen cloth, both the ' old drapery ' or broadcloth, and the newer kinds such as serges and crapes which had been introduced by the Flemish refugees in the time of Elizabeth. The articles upon which poundage was taken by the Act of 1660 were known as the Old Subsidy. Subsequent percentages of equal amount were laid on prac- tically the same articles — in 1698, again just after the outbreak of the Spanish Succession War in 1702 and 1703, just after the Austrian Succession War in 1749, and finally during the Seven Years War in 1759 — five percentages in all, the last four being known by way of contrast as the New Subsidy, and being laid almost entirely on imported articles. But the whole twenty-five per cent, was not chargeable even on all ' the articles enumerated in the Book of Rates provided by the Act of 1660. Meanwhile, the export duty on cloth had been repealed in 1700, and Walpole abolished nearly all the remain- ing export duties on British manufactures. At the same time, a great number of other duties besides the five subsidies were from time to time imposed on articles which had not needed notice in 1660. Some of these were appreciably reduced and even altogether abolished by Walpole. The fact that they were mainly duties on raw material for English manufactures had the additional advantage of effectually checking the smugglers. Walpole even attempted to alter the mode of collection by developing the system of warehousing which, while encouraging trade to come to England, only charged REVENUE AND TAXATION 525 a substantial duty on the goods which were consumed in the country. This method had been appUed to foreign silks in 1700: A\'al])ole extended it to tea, and would have carried it i733- further but for the furious party opposition which identified it with a general scheme of excise. But AValpole's excellent measures were only a temporary Mercantile lightening of the load placed upon English trade in exem- System, plification of the mercantile system of commerce. According to the principles of this system, power — rather than plenty through mutual benefit — was the aim of trade with foreign nations. This power was to be obtained by self-sufificiency at home through prohibitive duties upon foreign imports, combined with the acquisition of foreign markets for home manufactures. Thus not only were export duties gradually withdra\vn ; but the export of English goods was artificially encouraged by drawbacks, bounties, commercial treaties and a monopoly of the colonial trade. Drawbacks were customs or excise which were repaid on the exportation or re-exporta- tion of the articles on which they were levied. The ware- housing scheme of Walpole was intended to do away with the necessity for such payments ; but no general system of bonding or warehousing came into practice until 1803. Bounties were extra payments made by the government for the encouragement of production in certain kinds of goods, and especially for their exportation to foreign countries. The chief of these was a bounty of 5^'. per quarter upon wheat so long as the home price did not rise above a certain limit. This lasted from the Revolution of 1688 to 1814; but so high did the price of wheat rise during the Napoleonic wars that not only was it necessary to withdraw the now useless bounty on exportation, but an attempt was made to attract sufficient foreign corn into the country by the payment of boun- ties upon importation. Other well-known instances of bounties were those on whale ships at £^\ per ton for the encourage- ment of the whale fishery, which ceased in 1824; and on linen and cured herrings which continued till 1830. The object of co7ninercial treaties was to secure a ' sole market ' or the monopoly of each other's trade by the two contracting countries. The best-known instance is that of the Methuen 1703. Treaty with Portugal, by which Portuguese wines were to be 526 ENGLISH CONSTITUTIONAL HISTORY admitted into England at two-thirds of the custom imposed on wines from France, while English wool was to be admitted duty free into the markets of Portugal. Finally, the colonies were regarded as mere feeders of the mother country, whose business was to grow raw material for the home manufacturers and to afford a market for the surplus goods of English manu- facture. As a matter of fact, English statesmen were more generous to the colonies than their French and Spanish rivals; and Walpole allowed both rice from Carolina and Georgia, and sugar from the West Indies, to find their way direct to Europe provided they were carried in British ships ; w^hile his so-called excise scheme was framed largely in the interests of the colonial trade with countries outside the British Isles. Establish- In the present system of free trade, such customs duties as inent of remain are levied almost solely for purposes of revenue. The Trade. acceptance of this system was due, among many others, first and foremost to Adam Smith and later to Cobden, whose principles were carried into action by William Pitt, Sir Robert 1783- Peel, and Mr. Gladstone. When Pitt came into office he found the customs duties in a state of great confusion. Not only were there no less than sixty-eight branches of those duties, but each imported article paid several separate customs, some few of them under as many as fourteen different heads. So great was the consequent temptation to smuggling that the estimated loss to the revenue was two millions. The com- plexity was increased by the prevailing system of appropriating each duty to a particular item of expenditure. In the true principles of the ' Wealth of Nations ' Pitt reduced many of the existing duties — for example, that on tea from 119 to \2\ per cent. With the same object and without any popular demur, he carried out Walpole's scheme of 1733, by transferring the duties on wine from customs to excise. But, perhaps most important of all, he simplified the various heads under which customs had been enumerated, laid a single duty upon each article, and arranged for the accumulation of all the proceeds 1787. of the customs into one sum, known henceforth as the C071- ' Lecky, V. solidatt'd Fund? The great war necessitated an enormous 3'"35- increase of taxation; and customs duties were imposed on every available article of importation. But the policy of REVENUE AND TAXATION 527 \Valpole in freeing the raw material imported for our manufac- tures, and the success of Pitt in the direction of simpHfying the customs duties, gradually found imitators after the strain of the war was over. Walpole's mantle fell upon Robinson (afterwards Lord Goderich) and Huskisson, by whose joint influence, as Chancellor of the Exchequer and President of the 1824- 1S25. Board of Trade respectively, the duties on raw silk and wool and on several metals were considerably reduced. But it was Sir Robert Peel who worked a thorough reform in the customs duties. He entered on ofifice after a series of deficits in the annual revenue; and yet, while 'reviving the Income Tax to 1842. tide over the immediate loss to the revenue, he so far showed himself a consistent disciple of Adam Smith and Ricardo, that — of the 1,200 articles bearing customs duties in 1842 — he removed about 750 from the tariff, and in 1845 over 400 more. In 1846 he abolished the duty upon corn. The few remaining export duties disappeared, although in 1901 there was a small revival in the shape of a duty of one shilling a ton upon coal, The final blow to the old protective system was dealt by Mr. Gladstone in his budgets of 1853 and of i860. The immediate losses to the revenue involved in each of these reductions have been amply compensated by the increased trade of the country and the consequent yield of other taxes which chiefly take the shape of Excise and Stamps. § 79. The most permanent methods by which the revenue Excise, was increased after the Restoration, were the Excise and Stamp duties. An Excise'^ was originally a duty on articles of con- 1 Anson, ii. sumption produced in England. Now, there seems to have 308-311- been a deep-rooted aversion in the English mind to taxes on internal trade. But at the outbreak of the Civil War the parliamentary party, under the leadership of Pym, braved the anger of the people, and introduced in succession, though only ' at the point of the sword,' an excise on ale, beer, cider, 1643. and other beverages, followed by one on salt, starch, textile 1644. goods, and victuals of all kinds. .Some of the more common articles of consumption were removed from the list in 1649: but the exceeding profitableness of the tax induced the statesmen of the Restoration to incorporate it permanently in the financial system of the country. It was necessary to find some com- pensation for the feudal dues which the Crown surrendered. 528 ENGLISH CONSTITUTIONAL HISTORY 1819. Extended to tax on imports, 1733- The country had become somewhnt reconciled to the excise. Accordingly, in the place of the abandoned feudal dues and the right of purveyance, was made a grant estimated at ;^i 00,000 as the proceeds of an excise on beer and liquors, both home-made and imported. This was added to the hereditary revenues of the Crown ; while for Charles II's life a temporary excise was given at the same rate. The hereditary excise formed part of the Civil List of the Crown: in 1736 part of it was commuted by Parliament for an annual sum of ;^7o,ooo ; and in 1787 the rest was absorbed, together with all existing excise duties, into the general scheme of the Con- solidated Fund. Throughout the eighteenth century and the early years of the nineteenth the continually increasing expenses entailed by a series of great wars were met, among other ways, by constant nezv applications of the excise. In 1695 began the tax upon malt, in 17 11 that upon soap and paper, in 1746 that upon glass ; while from time to time such articles of common and necessary use as bricks, candles, calico prints, leather and salt, were added to the list of excisable commodities. The number of these at the end of the eighteenth century has been enume- rated at twenty-seven ; but the enlightened policy of Robinson and Huskisson reduced them to nearly half that number, and at present they may be counted on the fingers of one hand. Moreover, when the number of excisable articles seemed to have reached its limit, financiers, nothing daunted, proceeded to raise the rate. Thus the charge upon spirits, the earliest of all excisable articles, was only a few pence at its first imposition in 1660, stood at over 3^'. just before the outbreak of the French Revolutionary wars and, under the stress of those wars, rose to no less than \2S. id. per gallon. Meanwhile, the term excise had been extended beyond its original meaning of a tax upon articles of home production and consumption. Even under the Commonwealth an excise was imposed on certain imported articles, which thus paid a duty at the ports as well as an excise in the process of exchanging hands. Hut the full effect of the misnomer (for such it really was) appeared in the extraordinary agitation produced by Walpole's Excise Bill. This was simply a scheme whereby, for the [prevention of smuggling and the encouragement of REVENUE AND TAXATION 529 foreign trade, the system of warehousing, already introduced in the case of foreign silks, should be applied to wine and tobacco, and — as in the case of tea, coffee, and cocoa — the customs duty on their importation should be turned into an excise duty on their consumption. For this purpose the articles so to be dealt with were brought to English ports and warehoused, and only such of them were rendered dutiable as were taken out for consumption in England ; while those re-exported were free from all except a nominal payment. But despite the continuance of the excise after the Common- wealth, the system was anything but popular in England. The feehng about it may be measured by Blackstone's remark that 'from its first original to the present time its very name has been odious to the people of England,' and by the celebrated definition inserted by Dr. Johnson in his dictionary, that an excise was 'a hateful tax levied upon commodities, and ad- judged not by the common judges of propert}', but wretches hired by those to whom excise is paid.' Walpole's proposal was solely concerned with a change in the method of col- lection ; for, the full duty was to be levied by officers of excise. But ' an unscrupulous opposition working upon the general hatred of the name,' turned the name into a description of the character of the tax, and represented it as the first step towards a general scheme of excise necessitating that inquisi- torial method of house to house visitation by government officials against which Englishmen have always protested. But the partisan character of the opposition is shown by the ease with which Pitt carried out the very measure which 1787. Walpole, despite his parliamentary majority, had felt himself constrained to abandon. An almost equally illegitimate extension of the term ' excise ' to licences. is that which makes it include various licences} These are ^"son, u. 31 1, of two kinds, embracmg authorizations to carry on certam pro- fessions or to trade in certain commodities ; and payments falling almost entirely on the wealthier classes 'for enjoyment of certain things of convenience or luxury.' Of the first kind the earliest instance may be found in the monopolies of Tudor and Stuart times, and more particularly in the licences on inns and alehouses of the same period, which were the cause of such violent abuses. But the real idea of these 2 M 312 530 ENGLISH CONSTITUTIONAL HISTORY levies was no doubt borrowed from the Dutch and first appHed after the Restoration. Under this head, then, would come such payments as the tax upon publicans, upon auctioneers, hawkers, pawnbrokers, foreign-wine dealers, tobacconists, and others ; while in the latter list would be included taxes on carriages, horses, men- and (until 1792) women-servants, plate, cards, dice, armorial bearings, dogs. In 1785 all these were grouped together under the head of assessed taxes, and up to 1869 the taxpayer. was required to pay for those the liability to which he had incurred in the previous year. But at that date the name of ' assessed taxes ' was abolished, and a dis- tinction drawn between excise licences and establishment licences ; both of which were now required to be taken out at the moment when the liability was incurred, whether it was at the beginning of the year or at any period in its course. Stamp Alongside of the Excise grew the Stamp duties} Indeed, Duties. ^i^g difference between the two is only a difference of the 12. ' "' manner in which the money is conveyed to the Exchequer. We may set aside such exactions as the admission stamp necessary for practising the calling of a barrister or physician ; for, it is immaterial whether such tax takes the form of a stamp or, as in the case of a publican, it is paid as a licence. Apart from this these duties fall into two classes, according as they apply, on the one side, to the validity of legal transactions and, on the other, to the devolution of property. Some temporary stamp duties were imposed in 1671 ; but the first general Act dates from 1694, when stamps varying in value from jQ2 to one penny were required to such documents, among others, as admission to offices or degrees, marriage certificates, copies and probates of wills. Numerous other documents were from time to time included within the operation of the Act, such as bills of exchange in 1782 and receipts for payments in 1784. At first the amount of the stamp varied in all cases with the length of the documents. But in 17 14, in the case of grants to offices, the value of the transaction was taken as the deter- mining point. In 1784 this principle was applied to receipts which were included wdthin the liabilities of the Act, and subsequently to other legal transactions : while in 1853 the stamp upon receipts was made an uniform amount of \d. for all sums over ^2. The most profitable form of stamp duty is the REVENUE AND TAXATION 53 I legacy and succession duty which was first imposed by Lord North in 1780; but its careless provisions led to so much evasion that Pitt's measure of 1796 was on entirely new lines. It was not the legatees but the executors who were responsible for the payment.^ Pitt had intended to include succession to ' Dowell, property of every kind; but he was only able to accomplish"'- '33-4- a measure which provided for the succession to personal property. It was not until 1853 that real property was brought under liability to the same duties, though in a less degree ; and Mr. Lowe's attempt in 1871 to assimilate the duties payable on both kinds of property was in the end abandoned. Changes were made by Sir Stafford Northcote in 1880 and by Mr. Gladstone in 1881. Among other things Mr. Gladstone added a new 'account duty,' and in 1889 Mr. Goschen im- posed a new 'estate duty.' Finally, in 1894, Sir William Harcourt substituted for all the so-called ' death duties ' except those on legacy and succession, a new estate duty consisting of a percentage of the principal value of all property real or personal. This is graduated in amount corresponding to the increasing size of the sum upon which it is paid. Such were the chief items of national revenue at various Summary, times in the history of the country. They may be shortly summarized. The Anglo-Saxon kings were dependent practi- cally on the revenue which came to the Crown from the king's demesne, the profits of justice, and the exercise and enjoyment of various prerogative rights. Not until after the Conquest were these in any way calculable at a money value. Under the Norman kings the feudal dues were added to the revenue ; but it was only in Henry II's reign that taxation began to form an important item of the national income. The taxes of a feudal nature — scutage, tallage, and the hidage or carucage, which had taken the place of the earlier danegeld — dragged out their existence until the reign of Edward I, after which they practically disappeared. Besides the royal demesne, which fluctuated almost from year to year according to the checks put upon the lavish generosity of the king, and many pecuniary rights which came from the prerogative, the chief items of income were (i) the tax on moveables begun under Henry II, and under Edward III not only assuming the shape of a levy in the definite proportions of a tenth and 532 ENGLISH CONSTITUTIONAL HISTORY a fifteenth, but even becoming a fixed sum of nearly ^^40,000 ; (2) the customs, whether as at first in the shape of the ancient customs and subsidy on wool, or the tunnage and poundage of a later period. Up to the Civil \Vars the only change was the addition of the Tudor subsidy. Of the old rights of the pre- rogative some continued in full force throughout the period, while others were revived from time to time as methods of raising money by unscrupulous kings. The experiments of the Commonwealth, borrowed largely from Holland and adopted by the statesmen of the Restoration, began the, modern system of taxation. The feudal dues and some of the most vexatious of the old royal rights were entirely abandoned. Even the subsidy gave way to what was intended to be a property tax, but became merely a land tax. The customs were placed on a new basis, and two practically new expedients, the excise and stamp duties, soon proved to be among the most lucrative items of the national revenue. Finally, from the time of the younger Pitt the customs and excise have been gradually decreased, and the deficiencies made good by the Income Tax and Inhabited House duty. Loans. § 80. But since the Revolution of 1688 the increased facihties for borrowing money have entirely done away with the necessity of making the expenditure of the year tally with its revenue. This has changed the whole method of govern- ment finance. But we should gain a very partial view of the financial resources of the country even before the Revolution, if all mention were omitted of the numerous loans contracted from time to time by the government. The Jews The earliest creditors of the king were the Jeivs. There in England, ^^^.g isolated notices of their presence in England even before the Norman Conquest; but their importance in the financial history of the country dates from their settlement in larger numbers in the Conqueror's reign. From that time until their banishment by Edward I they were the king's financial agents. 1290. One of the so-called Laws of Eadward the Confessor describes them as the king's chattels. Indeed, they were absolutely without status in the kingdom, nor was there any foreign government to interfere in their behalf. The king, on the one side, fleeced them most unmercifully. Under Henry II the Commune Concilium, which had agreed upon ^70,000 as REVENUE AND TAXATION 533 the sum likely to be yielded by the Saladin Titjie for the Crusade, proceeded to assess the Jewish population for the same purpose at no less than ^60,000. The story of John's treatment of the Jew of Bristol, who was condemned to lose a tooth a day at the cost of 10,000 marks until either his teeth or his treasure were exhausted, and who held out for six days against the king's demand, is perhaps scarcely an exaggerated illustration of the attitude of the king. In self-protection the Jews gathered together not only into those towns where public chests were maintained for the registration and preservation of their bonds, but even into special quarters of the towns where they could practise, unmolested by any city official, their language and their religion. At the same time, every effort was made for their conversion. Converts as being Christians ceased to be chattels of the king ; and in 1233, in what is now known as Chancery Lane, a Domus Conversorum or state- endowed home for Jewish Christians was set up, an example subsequently followed both at Lincoln and at Oxford. At the same time, Richard I had given the Jews a regular organization. The revenue obtained from them, which came both from extortion and in payment of licences for various purposes, was gathered into a special Exchequer of the Jews presided over by special justices, sometimes themselves of the Jewish persuasion, who also exercised an exclusive civil jurisdiction in cases where a Jew was concerned. John and Henry III granted further privileges and protection. But the utmost royal favour could not shield the Jews from the popular hatred. The Scriptures prohibited the taking of interest for loans ; and in the absence of any field for investment of spare capital, a demand for recompense was regarded as an attempt to take Usury, advantage of a neighbour's necessities. Consequently, the exaction of interest was forbidden to Christians under the hateful name of usury. But the Jews were not amenable to Christian law : and the dangers which they incurred, no less than their proverbial greed, were responsible for the enormous rates which they demanded. It was out of their loans to extravagant and heavily taxed landowners that the Jews made profits such as were impossible to the thrifty merchant ; while the fact that it was the Crusades which gave them special opportunities for amassing riches out of the necessities of enthusiastic Christians, 534 ENGLISH CONSTITUTIONAL HISTORY added further fuel to the fire of popular hatred which ever and anon burst out. It was, however, only by such means that the Jews could keep pace with the royal demands, and thus the king's use of them, which did not diminish their unpopu- larity, imposed a large indirect taxation upon the industries of the country. It was scarcely likely that their services to learning, as students of physical science and medicine, as teachers of mathematics and Hebrew, and as collectors of valuable libraries, should have received due recognition. From the time of Stephen onwards no story against them was too impossible to be believed ; nor are the kings free from the charge of fostering such tales for the purpose of making the 1 Cunning- Jew pay heavily for protection.^ At length Edward I, much ^^""' •• to his own disadvantage, yielded to the popular clamours, and in 1290 wound up a series of harsh measures by a sentence of banishment which, despite his best endeavours, was most 2 S. C. H. cruelly carried out.- There is abundant evidence that after § 278. i;i^g decree of banishment Jews remained in England, chiefly in the guise of physicians or foreign merchants ; although as a body they were not allowed to return until the Common- wealth. The accusation on which they had fallen had been that of tampering with the coinage ; but, whether this were true or false, the real reason is rather to be found in the accumulated hatred of all classes of the people and the formidable rivalry of merchants from Italy, who in many European countries were successfully assuming the position of bankers. Foreign The success of the Jews had been largely due to the con- merclianis. section, through their co-religionists, with most of the civilized countries of the world. Thus while, on the one side, they were money lenders, on the other they were foreign-money changers. In the latter role they were rivalled and forcibly superseded first by Catirsines, merchants from Cahors, and more effectually by Italians from Lombardy and Florence, who had spread themselves all over Europe. From every part of Western Europe large sums of money were annually trans- mitted as tribute to the Pope. These merchants were employed as papal agents to collect and transmit what was due. Again, the produce of the East found its way to European markets through the ports of Italy. For its dis- REVENUE AND TAXATION 535 tribution Italian houses of business formed a network of connections throughout Europe. It has been pointed out that nearly all the early commerce of the country was in the hands of foreign merchants. Indeed, the English tributes to the Pope were paid largely in wool. Thus the conduct of the foreign trade both in England and elsewhere made the mer- chants also into money changers. Moreover, their business could not be carried on without considerable capital, and, as ])ossessors of large sums of ready money, they became creditors of the king ; while their possession of the machinery necessary for the prosecution of a valuable trade caused them to become banks of deposit for the money or goods of wealthy individuals. These foreign merchants were regarded by the English people with scarcely less suspicion than that which had fallen upon the Jews. The kings, however, welcomed them and gradually withdrew the disabilities to which they were subjected. Yet even with this encouragement their trade gradually died away. Edward III not only borrowed largely from them, but even repudiated his debts ; and the consequent ruin of the great house of the Bardi is said to have plunged half Florence into distress. The merchants not unnaturally became shy of lend- ing to the king, who was forced to resort elsewhere.^ But i s. C. H. even their trade gradually declined. The increased manu- § 278- facture of English cloth after the reign of Edward III, and the consequent decrease in the exportation of English wool, deprived them of their chief article of trade ; while the obstacles put in the way of their exportation of coin rendered it hard for them efficiently to conduct the exchanges. Their chief work came to be merely the negotiation of bills of exchange. At the same time, the English towns prevailed alike over ' the weakness of the Lancastrians and the bourgeois sympathies of the Yorkists ' ;- obstacles were once more placed '"■' Ashley, in the way of foreigners, and, at the same time, the English ^ '^?": "'■'■ merchants had begun to organize themselves in the associations 15. and companies already mentioned. Meanwhile, the change of opinion on the subject of usury Regulation rendered it possible for the king to have recourse openly to " Interest, such of his subjects as were willing or could be compelled to lend. With the opening up of fields for investment the taking of interest gradually came to be no longer regarded as 536 ENGLISH CONSTITUTIONAL HISTORY 1 Cunning- sinful, but only as needing legal regulation. For, at first there ham, Eng. ^yg^g naturally no real comprehension of the relation between Com. the employment of capital and the rate of interest, and the (1885)338. latter 'was spoken of as a sort of arbitrary compensation to the man who having money was in a manner obliged to do a 14SS. good turn to a friend.'^ Thus, although an Act of Henry VII 1545. forbade all lending of money on interest, under Henry VIII interest was allowed at ten per cent. This permission was withdrawn in 1552, and on scriptural grounds all taking of interest was again forbidden. This, however, had so little effect in checking the practice that in 157 1 the Act of Henry VIII was restored, although any rate above ten per cent, was stigmatized as usury and as forbidden by the law of God. The rate was gradually reduced, in 1624 to eight per cent., in 1651 to six per cent., at which figure it remained till a further reduction to five per cent, was made in 17 14. It is noteworthy that the laws regulating the taking of interest, commonly called the Usury Laws, remained on the Statute Book until 1855. Origin of As the king's creditors the foreign merchants were followed Banking in ^^ foreign princes, including even the Pope, who was among the first to set at nought the Christian feeling about usury ; while at home wealthy communities, such as towns and monas- - S. C. H. teries, were willing to help the king in his necessities.- But § ^7 it was not always so easy to raise money, and then recourse was had to compulsion, and wealthy individuals were made to lend of their accumulated treasure to the king. The advantage of this method was that it caused no widespread discontent in the country. The difference between a forced loan and a benevolence or free gift is not easy to grasp ; for, a loan taken at the king's pleasure might also be repaid in his own good time, and with a complaisant Parliament to back him the distinc- tion entirely disappeared. But the Great Rebellion deprived the Crown of this method of raising money. Meanwhile, a new source of supply was developing it&elf. With the increasing facilities for commerce offered by the discovery of the New World, individual wealth was growing; and until an extensive system of credit was established, this wealth consisted largely in bullion and precious stones. The need of safety caused the owners to entrust their valuables to the care of the Gold- REVENUE AND TAXATION 537 smi///s, wlio would naturally be possessed of places of safety. To the valuables were added sums of money on deposit, and the goldsmiths, borrowing the system from Holland, turned to the profitable trade of banking. They paid six per cent. on the loans of their customers, and made their profit partly by picking the best coin and melting it down for export, partly by short loans to merchants, like the bankers of the present day. After 1640 their business much increased. Hitherto merchants had kept large sums of ready money at the Mint, which was then in the Tower of London. But a few months before the meeting of the Long Parliament Charles I, among other expedients for raising money, seized a sum of ;,^i 30,000 deposited there, with a promise of repayment six months hence.^ The matter was compromised ; but hence- ' Gardiner, forth the only secure place of deposit was with the goldsmiths. '^- '7o- Under the Commonwealth the government was carried on largely by loans, which were raised chiefly from the goldsmiths on the security of particular branches of the revenue. The system was continued after the Restoration, until in 1672 Charles H closed the Exchequer, that is, suspended repay- ment to the goldsmiths, the largest creditors of the Treasury, to the amount of ^1,300,000. These were unable to answer the demands of their depositors, and were obliged to declare themselves bankrupt. But the consequent distress was so great that, despite the best efforts of the Crown to escape from the necessity of repaying the goldsmiths altogether, it was obliged at last to acknowledge the debt, and to take 1701. means, in a manner which will j^resently be noticed, to satisfy '" Cunning- ., • • jv •> ham, £hp^. the survivmg creditors.- /„^ ^„/ The thorough distrust in the government which these pro- Cow. ii. ceedings had engendered, was increased by the political 222-3 uncertainty which prevailed for some years after the Revolu- The Bank tion in 1688. The ministers of William HI found it almost ^'f I^"gland. impossible to raise money on a sudden emergency, and resorted to all kinds of expedients. For some time the idea of a national bank had been mooted, on the analogy of the Bank of Genoa which had existed for three centuries, and the Bank of Amsterdam which was founded at the beginning of the seventeenth century. The scheme as it was adopted, was submitted by its founder, a Scotchman named William 538 ENGLISH CONSTITUTIONAL HISTORY Paterson, in 1691 ; but not until 1694 was it put into practice by Montagu. The plan appealed solely to the monied interest, and consequently only just escaped wTeck in the House of Lords. But among the merchants of the City it met with immediate success, and the whole capital of ;^i, 200,000 was subscribed in ten days. The interest was eight per cent, secured on a new tax on the tonnage of ships ; and the subscribers were allowed to take up the work of the ^ Macaulay, goldsmiths and to act as a bank of deposit and loan.^ The IV. 58-60. novelty of this method of raising money lay in the fact that not only was no stipulation made for the repayment of the principal, but it was definitely understood that the interest paid by the government was to be a more or less permanent charge. In other words, this was the beginning of the National Debt. The justice or injustice of burdening posterity with the repayment of debts incurred for present purposes, must be - Cf. Lecky, left to treatises of economics or practical politics.- Here may 1- 337-9- bg noted the historical facts that the monied classes were enlisted on the side of William HI, who was enabled to raise loans without provoking any of the disaffection which would have accompanied heavy taxation ; that government securities now became a safe and popular investment ; and that thus a great inducement was given for the accumulation of capital. But at the very outset of its career the Bank of England was almost wrecked through the hostility of the goldsmiths and the landed gentry. The former, not unnaturally jealous of the new rival, took advantage of the scarcity of metal money which pre- ceded the recoinage of 1697, and, accumulating a large quantity of the bank's notes, presented them for immediate payment. By the patriotic efforts of the proprietors all genuine claims were met, and the satisfaction of the goldsmiths' demands were ' Macaulay, delayed until the new coinage had been issued.^ It was iv. 152. exactly a century before the Bank was again placed in a similar 1797- predicament, and on the next occasion Parliament came to the rescue and exonerated the directors from paying their claims in cash. The bank notes thus became legal tender ; nor were cash payments resumed until 18 19. In the crisis of 1697 the landed gentry took the opportunity of the Bank's inability to negotiate a fresh loan for the king, to revive the project — already m.ooted by Chamberlayne in 1693 — of a Land REVENUE AND TAXATION 539 Bank, that is, one whose liabiHties should be secured on investment in land. In its desire to propitiate the Tories, the government lent a favourable ear. But the crisis of 1697 had already shown the importance of a bank reserve in forms that can easily be realized. Land is of all things the most difficult to dispose of at a moment's notice. Conse- quently, quite apart from the fact that the proprietors of the Bank enormously overcalculated the value of land, the classes whom it was intended to serve refused to subscribe, the j^^ c6 149,' government obtained no benefit in the shape of the expected 153. loan, and the whole scheme fell through. ^ It has been said that the National Debt originated in a loan The to government, in return for which the subscribers were National allowed to enrol themselves as a corporation with the title of the Bank of England. To this was added a loa7i of £,2, qoo ^000 1698. fro?n the Neiv East India Cofnpany, in return for its charter. The government indebtedness was further swollen by the ultimate acknowledgement of the claims of the goldsmiths, 1701. against whom Charles II had closed the Exchequer. In 1706 these were compounded for, and the principal was added to the general debt. A fourth definite item was formed by the stock of the South Sea Company which, on the bursting of the South Sea Bubble, was taken over by the government. But 1721- this stock or capital had itself represented a floating debt (that is, one payable on demand of the creditor) of some ^10,000,000 raised during the early years of the War of the Spanish Succession. In 171 1 Harley had induced these creditors to allow the debt to be ' funded,' that is, to leave the capital permanently with the government, and to accept an annual interest secured upon the customs. In return for this they were formed into a company for exercising all the privi- leges of trade which Spain subsecjuently granted to England at the Treaty of Utrecht. This operation was repeated in 1720. All the existing government creditors, whose claims amounted to about ^32,000,000, were offered the alternative of payment or shares in the South Sea Company. The government thus gained the advantage of having one creditor instead of many. But more than this : so eager was the company to obtain all the credit of the government in order to extend its opera- tions, that it engaged to receive from the government the 540 ENGLISH CONSTITUTIONAL HISTORY lower rate of interest of five per cent, on the capital taken over, instead of the seven or eight per cent, at which the loans had originally been contracted. These loans had been and con- tinued to be raised in two ways — redeemable annuities, of which something will presently be said, and i?-redeemable or perpeiual atinuities, of which the government engaged to pay the interest, but made no stipulation as to the repayment of the principal. The consolidating policy of 171 1 and 1720 was repeated in 1751 ; the floating debts were funded, but the fund so formed was now kept in the hands of the government, bearing the low interest of three per cent., and was the beginning of what we now call ' Consols.' The policy of the government has been severely criticized, for, in order to diminish the interest, it fixed a low rate at which it was willing to borrow, and offered its nominal ^100 stock at the price which investors would give for it. Thus, when the credit of the government stood at five or six per cent., it offered three, and in consequence obtained only jQ^o or £,^0, while it left posterity to discharge the debt by payment of;z^ioo. This system of raising money was begun under George 11, and the extent to which it was carried may be illustrated by the fact that between 1793 and 1815, while the average price of three per cent, consols was 65, the addition made to the National Debt under this head was ^400,000,000, for which the govern- ment actually received ^260,000,000. Financial writers have pointed out that not only was the nation thus made liable to pay money which it never received, but it deliberately debarred itself from cutting down the interest in the future. The system has found a defender in Professor Thorold Rogers, who urges that, besides that it was an easy mode of borrowing (which some writers regard as ' a questionable advantage '), had the investor suspected that on the first opportunity the interest would be reduced, he would have demanded eight or ten per cent., whereas he was willing to take what was practically six per cent., since he i)aid ^50 for ^100 worth of stock. The government could redeem at par, and it was only fair that the investor should have some advantage for the convenience which he afforded to the government at the time when the loan was raised, as against the inconvenience which might be occasioned by having a heap of money thrown back upon his hands at a REVENUE AND TAXATION 54I time when he did not want it.' Two other methods have been ^ Econ. employed at various times for adding to the permanent debt. ^"{^>'P- "/ In 1694 a system of lotteries was introduced, by which part only of the money subscribed was distributed in prizes among the ticket holders. It was discontinued after 1823. A far more important portion of the present debt is formed by the ter/>iinai>/e a)i unities introduced in 1808. The object of this method of raising money is that, while a larger annual interest is paid, the principal lapses to the government either on the death of the investor or in a certain number of years from the time of the investment. At first, owing to careless miscalculations, these annuities resulted in large losses to the government; but this was remedied in 1828, and nearly ;!^8o, 000,000 of the present debt is held under this head. All the methods of borrowing hitherto enumerated have formed part of the funded debt or government stock. A far smaller, but an appreciable item of the whole, is formed by the Unfunded or Floating Debt, the redeemable annuities lately mentioned. This consists of temporary loans raised upon the security of Exchequer Bills, that is, promissory notes issued by the Treasury under the authority of Parliament, which bear interest from the day of issue until that of payment, and are then either discharged or renewable. They were issued first in 1696 to supplement the scarcity of metal money at the time of the recoinage ; and, being made receivable in payment of taxes and thus guaranteed against risk of depreciation, they form a good investment for capital which may at any moment be required, and are consequently in much commercial demand. The amount so issued varies enormously from year to year, part of it being sometimes funded and thus made into perpetual annuities. From the very commencement of the National Debt there were frequent prophecies of its fatal and ruinous influence. The names of Davenant, Bolingbroke, Hume, and Chesterfield may be enumerated among the large number of statesmen, economists, and historians who alike shared this view."^ And '^ Lecky, i. the rapidity of its growth seemed almost to justify their pre- 34°- 1- dictions. At the end of William Ill's reign it amounted to over ;;^i 6,000,000, and absorbed one-third of the entire revenue in payment of interest ; at the Treaty of Utrecht it 1713- Stood at ;!£"54, 000,000. At the Peace of Aix-la-Chapelle it 1748- 542 ENGLISH CONSTITUTIONAL HISTORY 1763- had risen to over ^78,000,000 ; at the Peace of Paris to ;^i 39,000,000, and the interest took ^4,800,000 out of an 1783- entire revenue of ;2^8, 500,000. At the Peace of Versailles, which ended the long War of American Independence, the debt touched nearly ;^27o,ooo,ooo, and cost more than ;^9,5oo,ooo out of a total revenue of _;;^ 13,000,000. It is to the French Revolutionary and Napoleonic Wars that we must look for the growth of the debt to its present gigantic dimen- sions. The twenty-two years of war added no less than ^620,000,000 to the liabilities of the government, and at the end of the struggle the debt stood at ^885,000,000, and its interest swallowed up nearly p/^30,500,000 out of a revenue of ;;^7 1,000,000.^ The long period of comparative peace and the steady efforts of financiers had by the end of the century reduced the debt to ^635,000,000; while, owing to the great increase of revenue, the proportion between the interest on the debt and the revenue had also declined to one-fourth. The South African War has made a large addition. It would, however, be a great mistake to suppose that no efforts at reduction were made before the nineteenth century, although the constant re- currence of long periods of war made them unavailing. It has already been noticed how Harley was led to fund the floating debt, and to transfer it to the capital of the South Sea Company. One of his motives was the payment of the decreased rate of interest which the company were willing to accept. This system was adopted by Walpole, who thus strove at least to diminish the annual charges on the country. As the credit of the government improved, those who had lent money at a now abnormal rate were offered the alternative of payment at par or acquiescence in a lower rate of interest ; and those who chose the former were paid off with money borrowed at the newer and lower rate. It was by this means that Walpole turned the greater part of the existing debt 1717. into a 4 per cent, stock, and although his successors generally preferred to raise their loans by the wasteful means already described, and so to preclude all possibility of repayment, they occasionally betrayed their knowledge of a more en- lightened policy by recourse to his system of lessening the interest on the whole amount. Thus, in 1751 the 4 per cents, were reduced by Pelham to 3^, and in 1757 to 3. It was used 1793-1815- ^ Cunning- ham, Eng. Ind. and Com. ii. 698. Whitakei's Ahnanack. Attempts to reduce the interest. REVENUE AND TAXATION 543 more frequently in the second quarter of the nineteenth century, and its latest and greatest effect was produced by Mr. Goschen in the budget of 1887-S, when the 3 per cents., which composed seven-eighths of the Funded Debt, were reduced to 2f, and ulti- mately to 2?,. This effected an immediate annual saving of nearly ;;^i, 500,000, with an ultimate gain of twice that amount. The schemes for reducing the principal of the debt have Attempts naturally been more varied. The earliest of these was the ^° reduce formation of a Sinkifig Fu/id, and was also due to the initiative of Walpole. The taxes appropriated to the payment of the 17 16. interest of the debt yielded more than what was sufficient for the purpose. The surplus was to be set aside annually and to be allowed to accumulate, until it was sufficient to pay off or at least materially to reduce the debt. But the possession of a treasure was too tempting ; on the first need a dip was taken into it, and by 1735 the whole had been gradually dissipated.^ ^ Lecky, i. In 1786 the younger Pitt adopted, but without public acknow- ^'^^' ledgement, a similar scheme which had been propounded by Dr. Price in 1771. According to this, a portion of the surplus, fixed at ^1,000,000, was appropriated to the annual purchase and extinction of stock, and was vested in special com- missioners in order to guard against its misappropriation by the government of the day. During the time of peace and commercial development which succeeded the American War, this worked extremely well ; and by 1793 the debt had been diminished by ^10,000,000 at a quicker rate than ever before. But the system was regarded as possessing some inherent virtue ; and on the outbreak of the French War, although the surplus revenue diminished until it disappeared, the Sinking Fund was maintained ; money was borrowed at high rates of interest, and part of the sum was applied to the extinction of a debt which bore a much lower rate." This ruinous system 2 //;;v/ v. continued until 1828. A somewhat similar though not equally 49-52- pedantic scheme is the application of a/i surplus revenue to the extinction of debt. By recent statutes this becomes the duty of every Chancellor of the Exchequer ; and at the end of the century the National Debt was being paid off at the rate of ;^5, 000,000 annually. The last method to be noticed, and the one which found especial favour with Mr. Gladstone, is the conversion of perpetual into terfuinable annuities, or, what comes 544 ENGLISH CONSTITUTIONAL HISTORY to the same thing, the raising of money on terminable annuities with which to pay off the principal of the perpetual annuities. This may be regarded as the antithesis to the first-mentioned policy ; for, it increases the interest for a time in order that after that time its payment may altogether cease and the capital may be thus extinguished or deducted from the sum total of the debt. The system § 8r. Something should be said, in conclusion, of the of national ^lethods by which at various times the revenue and taxation ture. have been collected and their expenditure has been controlled. The first point — the collection — need not detain us long. Since all public moneys were at the disposal of the Crown, it was natural that their collection should be the business of the Collection, sheriffs. The uses to which they put the power caused the appointment of special officials. At the present moment the revenue is collected by four great departments of the Treasury — the Commissioners of Customs, who find their origin in the Custumers appointed under Edward I ; the Inland Revenue, which began with the taxation of moveables and, under Henry III, was placed in the hands of temporary, but specially appointed officers ; the Post Office, which was not organized until the reign of Charles II ; and the Com- missioners of Woods and Forests, who superintend the now entirely surrendered crown lands. When the financial system of the country was first organized by the Normans, the Exchequer was divided into two courts — the Upper or Exchequer of Account, and the Lower or Issue and Exchequer of Receipt. It was to this latter court, consisting Audit. Qf ^\yQ Treasurer and one or two Chamberlains, that the collected revenue was paid in ; and the money was acknow- ledged by a system of tallies or notched sticks split in two, of which one half was taken away by the payer and the other half lodged in the Exchequer. The money was J>aid out in accord- ance with a royal order which, as a slight check upon the king, required the authentication of the Great or the Privy Seal ; and the record of the issue was styled the Pells of issue, from the parchment rolls on which it was entered. The audit of these moneys lay at first with the Upper or Exchequer of Account, and then with its legitimate successors, the Treasurer and Barons of the Exchequer. But with the accession of the REVENUE AND TAXATION 545 Tudors tlie whole system of issue and audit was revised. The issue of public money and the duty of keeping the account of it were placed in the hands of four new officers, called Tellers. The Chamberlains became merely honorary officials, though they lasted as long as the system of receipt by taUies, which it was their sole business to prepare and keep. On the other hand, the Treasurer's clerks developed in importance, one becoming the Auditor of Receipts, whose chief duty, however, was connected with the issue of money ; and another Clerk of the Pells, who kept the records of both the receipts and the issues of money at the Exchequer. The money continued to be paid out by the king's command, authenticated by letters patent or by writ under the Privy Seal ; and as a further security, there grew up 'a complicated system of I'reasury warrants, known as " the course of the Exchequer." ' ^ After the appropriation ^ Anson, of supplies had become a recognized principle, and especially i'- 332. after the Revolution of 1688, the whole system of issue centred round the Auditor of Receipt, whose authorization of the Treasury warrant was necessary before the Tellers could un- lock the chests at the Exchequer, where the collected revenue was deposited, and hand it over to the credit of the depart- ment for which it was allowed, at the Bank of England. On the accession of George III the Crown surrendered the management of all the royal domains in return for a Civil List of a fixed amount. It thus ceased to take any personal interest in, and therefore to exercise any control over, the Treasury. At the same time, the ministries of the first ten years of George's reign changed rapidly, while large sums of money had to be raised for the American War. The result was disastrous to the financial system of the country. Offices were paid by fees which realized an enormous sum, and the duties were discharged by deputy. The Paymaster of the Forces and the Treasurers of the Navy and the Ordnance kept in their hands the money voted for their respective services, and their delay in accounting for its expenditure rendered an efficient audit impossible. Attempts were made to remedy these evils. In 1783 measures were taken to prevent ministers from keeping money in their hands un- accounted for ; while salaries were fixed in amount and secured upon certain branches of the revenue, which in 1787 2 N 546 ENGLISH CONSTITUTIONAL HISTORY became the Consolidated Fund. Moreover, in 1785 the Auditors of Imprest, who had superseded the Barons of the Exchequer in the reign of Ehzabeth, were aboHshed in favour of a board of five Commissioners of audit. But further changes became necessary. The arrears left by the Auditors of Imprest were so great that it was more than twenty years before the new Commissioners overtook them and got abreast of their work. Meanwhile, in 1806, Lord Grenville's attempt to retain the non-political office of Auditor of Receipt with the post of First Lord of the Treasury, together with his subsequent use of the Auditorship, when in opposition in 181 1, to thwart the ministers over the Regency Bill, proved that the system of which that office was the centre, ' was not very valuable as an 1 Anson, ii. administrative check, though it might serve the purpose of 334- political obstruction.' ^ The In 1834 came a complete reorganization. The Exchequer modern ^y^s abolished together with all the sinecure offices which had s}sem. grown up around it. All payments hitherto made to it and not direct to such officials as the Paymasters and Treasurers mentioned above, were now made to the Exchequer account at the Banks of England and Ireland by a new official, the Paymaster of the Civil Service, who two years later became a Paymaster-General and included in his functions the moneys • hitherto set apart to special officials for the army and navy. The place of the Auditor of Receipt and the Clerks of the Pells was taken by the Controller-General, a non-political official, without whose authority no money was to be issued from the Exchequer account at the Bank of England. Until 1866 the audit was in the hands of the five Commissioners; but the final change to the modern system was made when the duties of the Controller-General and the Commissioners of audit were both made over to one official, the Comptroller and Auditor-General, whose functions have been described as not only magisterial, in that he authorizes the issue of money to the proper department ; but also judicial, in that he sees that the money issued has been properly expended. Of all this he has to make an annual report to Parliament, which thus learns that the money originally voted has been regularly collected, issued and expended according to the intention of the tax- payers acting through their representatives. CHAPTER XI THE CHURCH .§ 82. The question of the continuity of the English Church The Church has become the badge of ecclesiastical party politics. It is no as an part of the business of this book to trace the varying fortunes °''g^"'^^d of ecclesiastical history in England. Our business is with the structure of ecclesiastical organizations and their more permanent relations to the world around. Thus, without pre-judging the question of continuity, it will be convenient to take the Reformation settlement as a dividing line, and to examine (i) the position of the Church itself as organized in England; and (2) the relations of Church and State before and after that momentous period. In this way it will be most clearly apparent what exact changes followed the repudiation of the Roman authority ; and thus indirectly materials may be furnished for answering the question of the origin and antiquity of the English Church. The consideration of the Church as an organized body involves a description of (i) the various classes of churchmen, and (ii) the methods of self-government of the Church. Constitutionally, the orders of which the ecclesiastical organiza- tion was composed, were the bishops, the secular and the regular clergy — strictly speaking a cross division, since the bishops were drawn from the secular and regular clergy alike. At the time of the Reformation, ecclesiastical England was classes ot divided into two archiepiscopal provinces and nineteen epis- Church- copal dioceses. This division had been of gradual growth. '"^"• For the first century after the spread of Christianity among ^'^ Bishops, the English there were eight dioceses among the English 597-668. kingdoms, and Canterbury was regarded as the metropolitan. But, in the year 735, at the advice of Bede, the holder of the See of York obtained from the pope a pallium which secured 547 548 ENGLISH CONSTITUTIONAL HISTORY 787-803. his recognition as a metropolitan also ; while for a short period, owing to the influence of Offa of Mercia, Lichfield became a third archbishopric for Mid-England. The organizing work 66S-690. of Theodore of Tarsus included the division and extension of the existing episcopate. He foyned seven new dioceses and left Wessex to Winchester alone, although shortly after his death two more bishoprics were added for Wessex. The only further additions of Anglo-Saxon times consisted of three more West-Saxon Sees which owed their foundation to Eadward the Elder. But in consequence of the Danish invasions, of the twenty bishoprics four or five became extinct altogether, while others disappeared for a time, and in some cases the bishop's stool or residence was continually transferred from one place in his diocese to another. This compulsory migration had no effect of itself upon the administration of the diocese ; for, the bishops were rulers of tribes or districts, not (as abroad) of towns ; and their residences were often mere villages — places of retirement, not centres of activity. The Norman Conquest wrought considerable changes. The episcopal system was brought more into harmony with foreign usage by the trans- ference of the Sees to large towns : several new Sees were created to supply the place of those which had become extinct : foreigners of learning were appointed to vacant bishoprics. But the increase of the intellectual standard scarcely compensated for the natural alienation of the bishop from his flock, or for the inevitable tendency of the high offices in the Church to become more and more the rewards of political service. A more remote change effected by the Conquest was the settlement of the question of precedence between Canterbury and York in favour of Canterbury. A word of explanation is necessary. The original scheme of Pope Gregory gave twelve suffragans apiece to Canterbury and York, and included Scotland in the province of the northern archbishopric. But the Danish invasions for a time swept away even York itself, and on its restoration its sole suffragan was Durham. Meanwhile, the Archbishop of Canterbury had superseded the West-Saxon bishop of Winchester as the chief adviser of the Crown, and the temporary extinction of York had set aside all question of precedence. But, for the last half century of Anglo-Saxon rule, York, in common with all THE CHURCH 549 Northumbria, enjoyed a position of semi-independence. The maintenance of the uncanonically appointed Stigand at Canter- bury by the interest of the House of Godwine, placed Arch- bishop Ealdred of York at least on an equality. Ealdred's foreign successor, Thomas of Bayeux, appealed to the pope against Lanfranc's claims ; but the matter was referred to the Witan, which decided against York and ordered the holder of the See always to make profession of obedience to Canterbury. The quarrel, however, continued, and was not fairly settled until William of Corbeil, Archbishop of Canterbury, accepted 1 123- 11 39. the office of papal legate. But it is to be noted that he then took precedence of York not in the capacity of Papa alterius orbis (for so the pope had styled Anselm), but as the servant and local representative of Rome. The clergy as a body were divided into two great sections : (a) the seculars or parish priests, bound only by their ordina- tion vows ; and {b) the regulars, namely monks and friars, bound by some special rule in addition to their ordination vows. For the sake of completeness, mention should be made of two other bodies, which cannot be classed definitely under either head — the capitular clergy, who were seculars living under some rule, and the religious military orders. The division of England into parishes has been attributed (2) Secular to the organizing hand of Theodore. But it was a matter of '^'^''gy- gradual growth : the chaplain of the local thegn became the parish priest, as the chaplain of the king became the bishop. The patronage was naturally left to the thegn who had endowed the priest with glebe land and acknowledged his claim to tithes of produce ; while all the parish contributed on occa- sion to \}c\Q.fees which were exacted for the spiritual services of the church. The glebe was taken probably in strips among the common fields of the village. The obligation of tithe seems at first to have been voluntarily acknowledged, then enforced with spiritual penalties by the Church ; and it was paid in the first instance to the bishop, who distributed it among the several parishes of his diocese. The fees included such items as cyricsceat or firstfruits paid by every householder, and saivlsceat or mortuary dues. Mediaeval England seems to have contained about 8000 parishes, and the priest was a man of considerable authority within the local area. His Anglo- 5 so ENGLISH CONSTITUTIONAL HISTORY 1 S. C. 66, Saxon title of mass-thegn ' indicates the social class with which .^ ^' he was ranked, and he accompanied the reeve and four men of the vill as representatives of the local interests in the - /6iJ. 105, hundred and shire moots." In nothing perhaps is the pro- ™" 7- vinciality which the English Church shared with the English Nation, so marked as in the fact that nearly every parish priest was a married man ; and that, notwithstanding the canon against the ordination of the son of a priest, before the Norman Conquest there was danger of the formation of an hereditary clerical caste. After the Conquest, Lanfranc became the agent of the reforming party in the Church, and introduced celibacy : but the previous ill-success of the efforts of Dunstan's party caused him to move most cautiously. The Hildebrandine party would have liked to assert the nullity of all sacraments performed by a married priest. Lanfranc contented him- self with leaving married secular priests in their benefices, while for the future he forbade priests to marry or married men to be ordained. The feudal ideas of the Normans wrought a still more important effect on the position of the parish priest. Even before the Conquest pious patrons had bestowed upon monasteries of especial fame the advowson of, that is, the right of presentation to, a benefice which was often situated at a distance"from the monastery itself. This privilege of patronage, with its attendant duty of protection, passed into a right over the benefice ; and the monastery, while impro- priating to itself the greater tithes of corn and wool, supplied the spiritual duty by a curate, for whose support were reserved the lesser tithes and all fees for the offices of the Church. The revival of monastic life caused a rapid spread of this most harmful method of endowment ; and the country was covered with benefices whose patrons had none except a pecuniary interest in the parish. Besides the beneficed clergy and their curates there was a cl.iss of seculars known as Chantry priests. They were attached to cathedrals or parish churches, or ministered in chapels belonging to great houses. Their sole work was to say masses for the dead ; so that they were both practically exempt from episcopal supervision and amenable to no ' rule.' The greater number of men admitted to orders must have been ordained to such posts, and consequently they were the most worthless of all the mediaeval clergy. THE CHURCH 55 I In speaking of the regular clergy it must be borne in mind (3) Regular at the outset that monks were not necessarily in full orders '^'^''Sy- either as priests, deacons or sub-deacons. They were originally °" ^" communities of laymen who cut themselves off from the world for religious contemplation. The temptations which naturally beset so idle and unrestrained a life led to the formulation of various rules, that of Benedict of Nursia being the most Fifth universally accepted. These communities freed themselves century. from parochial control by obtaining the ordination of some of their members, and from episcopal supervision by placing themselves directly under the patronage of the pope. They thus practically formed a papal garrison in every European country. In England, as elsewhere, the conversion of the Before the people was accomplished by communities of monks, and for Norman \ V • , , • , Conquest, the first two centuries they were the most promment element in the local Church. The popularity of the monastic life both multiplied monasteries and filled them with inmates of noble birth, whose presence brought insincerity of purpose, relaxation of rules, and a generally luxurious and idle mode of life. Learning, which had practically been kept up only in the larger monasteries, disappeared ; and the Danish invasions destroyed the monasteries and scattered the monks. When /Elfred began a monastic revival with the erection of the monastery of .^Lthelney, in memory of his deliverance from the Danes, the old English predilection for monks had quite died awajr, and he was obliged to seek for inmates in foreign lands. Eadred gave a further impetus to the revival by the refounding 946-955. of Glastonbury and Abingdon ; and under Eadgar the Bene- dictine rule was first brought from Fleury in Flanders. This revival is generally associated with the name of Dunstan. Whether Dunstan himself or his purely ecclesiastical friends, /Ethelwold and Oswald, were the moving spirits, the extent of the movement was limited both by Dunstan's own position as a statesman as well as an ecclesiastic, and by the strong influence of the married secular clergy. Moreover, whatever may have been the immediate success of the reforming move- ment, it took no real hold of the country. Indeed, the only kind of discipline which at all succeeded in England before the Conquest, was that of Chrodegang of Metz, introduced by the Lotharingian prelates whom Godwine's family supported as 552 ENGLISH CONSTITUTIONAL HISTORY a counterpoise to Eadward the Confessor's French and Norman bishops. This planted round a cathedral a body of canons, that is, secular clergy living in a common dormitory and feeding at a common table. Such, for example, was Harold's great foundation of Waltham. After the With the Norman Conquest a great impetus was given to I^orman monastic life. Dunstan had already begun the practice of Conquest. . . , , , , • , t r ■ associatmg a cathedral chapter with a monastery. Lantrancs monkish instincts prompted him to encourage this peculiarly English system by introducing it into his own monastery of Christ Church, Canterbury ; while he lent his influence to defeat the attempts of Bishop Wakelin of Winchester in behalf of secular canons. At the same time, monasteries which were not connected with a cathedral struggled to free themselves from episcopal jurisdiction. The origin of this evil lay perhaps with the king himself, for William I exerted himself to procure such exemption for his own foundation of Battle Abbey. In this he had not the support of his primate; for Lanfranc, though a monk, was also a bishop, and meted out heavy punishment to the monks of St. Augustine's, Canterbury, who claimed this very privilege for themselves. But the papacy gave every facility for the growth of these exemptions; and in the case of England it found assistance in the fact that, for some time after the Conquest, the monasteries were hotbeds of national feeling. The increased connection of England with continental Europe led to the introduction of many of the new monastic orders to which the religious revival of the tenth century had given rise. The only rules known in England before the Conquest were that of St. Benedict of Nursia, and that of Chrodegang of Metz. The orders which were repre- sented in England after the Conquest may be classed as either Augustinians or reformed Benedictines. The Augustifiians, or canons regular of the Order of St. Augustine, known from their dress as the ' Black Canons,' were a cross between the regulars and seculars ; for, being in origin secular — a protest against monasticism — they leaned constantly towards monastic ways. They spread all over England, and devoted themselves to the work both of the schoolmaster and of the nurse. The Augus- tinian rule supplied the model to two other orders. The more important of these were the military orders of the religious, of THE CHURCH 553 which two were found in England — the Knights Hospitallers of St. John of Jerusalem, who were established at Clcrkenwell in I TOO, and whose Grand Commander in England became in rank the first lay baron of the realm ; and the Knights Templars^ who were established at the Temple in London at the beginning of Stephen's reign. Both orders grew rapidly in wealth, while their rivalry was sufficiently bitter to array them not infrequently in arms against each other. In 1308 the career of the Templars was brought to an end : the members resident in England were seized and their lands confiscated, and in the following year Pope Clement V abolished the whole order. The Hospi- 1309- tallers enjoyed a longer existence ; for, being driven from Jerusalem, they became knights of Rhodes until the conquest of 1308- 1522. that island by the Turks forced them to retire to Malta. Until the Reformation their Grand Commander continued a member of the House of Lords. The second offshoot of the Augus- tinians were the Frcmonstratensians, or ' White Canons,' who came to England in 11 40 and occupied thirty-five houses, re- maining until 15 1 2 under the direct jurisdiction of the parent house of Premontre or Premonstratum in the diocese of Laon. Of the Reforfued Benedictines three branches spread themselves into England. The first in order of time were the Chaiiacs. This was the earliest example of an order within an order ; for, it was a completely separate organization within the Benedictine rule, and it possessed a large number of dependent houses scattered through Western Europe, all under the government of the Arch-abbot of Clugny. The order came to England in 1077. It held about forty houses, most of which were founded before the accession of Henry II, the chief of them being Lewes Priory : they were all governed by foreigners, and for a long time were filled chiefly with foreign monks : they sent contributions to the parent monastery, and were able to be ' visited ' only by the foreign heads of their order. Consequently, the French wars often saw them taken into the king's hands as alien priories. The smallest branch of the Reformed Benedictines in England were the Carthusians, who came about 1 180; they possessed only nine houses, the chief of which was the London Charterhouse, founded by Sir Walter Manny in the reign of Edward III. The largest branch, on the other hand, was supplied by the Cistercians, who arrived 554 ENGLISH CONSTITUTIONAL HISTORY in 1 1 28 and became both numerous and wealthy. They settled in solitary places, where they carried on their great industry of sheep-farming. At the dissolution of the monasteries, of their seventy-five houses no less than thirty-six were among the greater monasteries. They held in addition twenty-six nunneries. The only other order which needs notice is that of the Gilbertines, an offshoot of the Cistercians and the one ])urely English monastic order. It was founded in 11 39 by Gilbert of Sempringham as a double order for men and women, and it possessed twenty-six houses, of which at the dissolution four ranked with the greater monasteries. Friars. Early in the thirteenth century, to thq monks were added the FRIARS. They consisted originally of the two well-known orders of Dominicans, or ' Black Friars,' founded by a Spaniard as a great order of preachers ; and Franciscans^ or ' Grey Friars,' also called Minorites (i.e. less than the least), founded by an Italian for work among the destitute. Both these orders arose within a few years of each other ; and under the patronage of Pope Innocent III they spread into almost every country of Europe. At the outset they were devoted to a life of poverty : their friaries were the meanest possible buildings ; and all learning and books were forbidden them. They entered England — the Dominicans in 1219, the Franciscans in 1225 — and both soon obtained settlements in all the chief towns. Their singular self-devotion speedily made them popular, and their popularity gave birth to other orders. The multiplication was checked by the Council of Lyons in 1274, which among the new orders confirmed only the Augustinians or Austin Friars and the Carmelites. Their popularity also brought immense wealth ; but since it was unlawful for the orders to hold possessions, donations of lands and goods were made to corporations of towns to hold to their use. The next innovation was equally subversive of the original intention of the orders ; for, their work both in combating heresy and in tending the sick forced them to the acquisition of knowledge. They plunged into the study of philosophy and natural science with such success that their ranks supplied all the great names in the last period of mediaeval thought. Their influence in England was striking and peculiar. For the first half century of their existence they were found in alliance with THE CHURCH 555 those classes which were most at variance with Rome, and engaged in the struggle for English liberty. Later on, however, they reverted to their original position of strenuous supporters of the papacy. Again, at the outset of their career their chief work lay among the rising merchant class, whose heretical tendencies they met with their scholastic learning ; and among the destitute, who welcomed the medical knowledge which they brought to the relief of loathsome disease. But with the ac- cumulation of wealth their thirst for knowledge decayed, and they gradually abandoned their work among the poor, rivalling the monks themselves in idleness and luxury. Meanwhile, they undermined the influence of the parish priests ; for, their freedom from episcopal control enabled them to creep in everywhere, and their cunning gave them almost a monopoly of the confessional. § 83. The govenwient of the Church as a local organizatioti Govern- involved the power of legisla1,ion which was carried out by "jjg"^^^y^^.j^ ecclesiastical councils, and of jurisdiction which was the work of the ecclesiastical courts. The Ecclesiastical Councils of Anglo-Saxon times ^ were either Eccle- national synods of the whole Church or provincial assemblies ^^^^^^jg of Canterbury and York respectively, and consisted always of 1 ^ (j // bishops, with an occasional addition of abbots. In his organiza- i. § 87. tion of the Church, Theodore provided for the annual meeting of a synod at Clovesho, somewhere in the neighbourhood of London. Councils are frequently mentioned, but they were neither regular nor annual : they were often attended by kings and ealdormen, and in their discussion and legislation the ecclesiastics carefully avoided any interference with secular law or custom. After the Norman Conquest the organization was extended to the gathering of diocesan synods, which were exhaustive assemblies of the local clergy. So long as separate assent was required, these bodies were separately consulted, and at a later stage it was in them that the representatives for the higher assemblies were chosen and the grievances of the local clergy were formulated. Such grievances were submitted to the provincial synods, which continued to be held very much on the Anglo-Saxon model. The second of William's Constie- tudines forbade any assembly of the bishops 'to enact or prohibit anything but what was agreeable to his will and had 556 ENGLISH CONSTITUTIONAL HISTORY '5. C. S2. first been ordained by him';^ while under Henry I the Arch- a mei. bishop of Canterbury held his provincial assembly at the same time as the king held his Court. Thus, although in the anarchy of Stephen's reign the ecclesiastical councils alone deserved the name of national assemblies, the power of these assemblies under the Normans and early Plantagenets was considerably circumscribed. For, in the first place, so entirely did their power of legislation in matters ecclesiastical depend on the acquiescence of the king, that in 1127, although the primate actually held the office of papal legate, the canons needed the royal ratification. In the second place, it was not until the power of granting taxes was transferred from the diocesan to the provincial synod (which did not happen till the reign of John) that the clergy as a body could be said to have a voice in the appropriation of their contributions to national purposes. The acquisition of this privilege brought with it the need for ■^ S. C. H. a representative assembly.- Hitherto the only persons entitled 11. § 199. (.Q attend a provincial synod had been bishops, together with abbots and archdeacons. In 1225 Archbishop Langton for Convoca- the first time extended the summons to include not only (a) bishops, abbots, priors, deans and archdeacons, but also .(/8) proctors or representatives for the cathedral, collegiate and monastic clergy. But there were two grave defects. In the first place, no provision was made for the parochial clergy. The practical results were seen in the refusal of the bishops in 1254, and, in 1283, of an assembly of bishops, abbots, heads of religious houses and proctors of cathedral clergy, to assent to a grant of money on behalf of the unrepresented parochial clergy. In the second place, neither the number of proctors nor the mode of their appointment was specified. It was not till May 1283 that for the first time the bishops were directed by Archbishop Peckham to assemble the clergy of the diocese, and to bid them elect proctors — two for the parochial clergy and one for each cathedral and collegiate chapter. The result was the formation in each province of a completely representa- tive synod or Convocation., which became a permanent assembly. The constituents of the two Convocations slightly differed. To the Canterbury assembly there came in person the bishops, abbots, priors, heads of religious houses, deans of cathedral and collegiate churches, and archdeacons. To these were tion THE CHURCH 557 added as representatives, two proctors for the parochial clergy of each diocese, and one for each cathedral and collegiate chapter : whereas the unit of representation for the parochial clergy of the northern province was the archdeaconry. These two bodies, so constituted, exercised considerable legislative power. ^ As regards the clergy, it was in these assemblies that ^ S. C. H. the general legislation of Christendom in Lateran and other '"• § 3^9-^ Councils was accepted as binding on the National Church, and that constitutions affecting the clergy of each province were issued. But the power was by no means unrestrained ; for, William's Consuetudines forbade the introduction of papal bulls without the royal licence,- while no ecclesiastical legisla- - S. C. 82, tion was valid until it had received the royal confirmation. Eadmer. Convocation even included the laity within the scope of its legislative power in all such matters as marriage^ wills, tithe, heresy, slander and usury. It is true, however, that these were mostly cases dealt with by the ecclesiastical courts, whose encroachments were met by the issue of prohibitions from the Courts of Common Law. As far as the legislature was con- cerned, the acceptance of outside legislation was limited by the Common law and the Statute of Praemunire. At the same time, it is to be noted that Convocation did not necessarily, though it did generally, meet at the same time as Parliament. Its proceedings, moreover, were seldom interfered with ; and after the accession of the House of Lancaster, they were not interfered with at all.^ Now, although in early days the 3 s. c. H. Church organization had set an example of unity to the State, iii. § 388. the centralization of the National Church itself stopped short at the two provincial assemblies ; for, the mutual jealousies of the two provinces prevented the convocation of national Church Councils. There were, however, three occasional methods by which this separation was overcome — (a) legatine Councils such as those in which the Constitutions of Otho 1237. were published, and the Constitutions of Ottobon were 1268. accepted : (/^) conference between the two Convocations, which, however, was generally conducted by letter between the two archbishops ; and {c) the meeting of the chief ecclesiastics of both provinces in the National Parliaments. Thus in 1207 John summoned the bishops and abbots of both provinces to grant an aid. Even the lower clergy were sometimes included. 558 ENGLISH CONSTITUTIONAL HISTORY 1 177. 1265. Eccle- siastical Courts. Before the Norman Conquest. ' Report of the Eccle- siastical Courts Commis- sion, 22, 23. After the Norman Concjuest. as when deans and archdeacons were summoned to the council in which Henry II arbitrated between the kings of Castile and Navarre : or when Simon dc Montfort called deans and priors to his Parliament. These formed precedents for Edward I's summons of the" clergy of both provinces to form one estate in the National Parliament. But three important differences should be noted between the clergy in Coiivocatiofi and in Parliament — (i) it is obvious that, while Convocation consists of two provincial assemblies meeting in their respective pro- vinces, the spiritual estate is one element of a general Parlia- ment meeting at the same place : (2) Convocation is summoned by the writ of the Archbishop addressed through the senior suffragan to each bishop ; whereas the representatives of the spiritual estate are summoned by the king's writ directed to each bishop : (3) before the Reformation, Convocation con- tained, in the abbots and priors, a class which as a class was not included in Parliament. § 84. The Anglo-Saxon constitution realized the identity of Church and State in a manner which was not possible again until after the Reformation. Thus, for judicial purposes the bishops sat in the local courts and seem to have exercised there the jurisdiction over cases arising out of the disputes and offences of the clergy, together with the morals of the laity, with which they appear to have been especially charged. It is true that, besides this, the bishop had special jurisdiction in three kinds of cases ^ — (a) in their own franchises, like any other great thegn, by the ordinary legal methods of compurga- tion and ordeal ; (/i) a penitential discipline which could be put into practice only by the goodwill of the laity ; and (y) for dealing with the spiritual offences of the clergy, such as heresy or disobedience, for which neither the local court nor peni- tential discipline was sufficient. In such cases there must have been tribunals answering to the later ecclesiastical courts. Here the executive officer was the archdeacon, who could, however, only exercise his functions by connivance of the secular power. William I introduced into England the ideas of ecclesiastical reform prevalent abroad, and with the object of carrying out the theory of entire separation of the organization of Church and State, he issued an Ordinance by which he both forbade THE CHURCH 559 the bishops and archdeacons to hold ecclesiastical pleas for the future in the local courts, and promised the aid of the secular arm in the enforcement of their sentences.^ The ' S. C. 85. results of this dualism of Church and State were most im- ^'^'^ f"*^ portant. For the present it is convenient to note the effects >> j • upon the jurisdiction exercised by ecclesiastical officers.- In " E. C. C. the first place is to be remarked the growth of archidiaconal ^5-2o- jurisdiction. Under the Anglo-Saxons eacli bishop had as his executive officer an archdeacon, who possibly sat in the hundred courts as representative of the bishop. But after William's Ordinance the archdeacon set up his own court ; and in order to meet the increase of ecclesiastical litigation, archdeaconries were multiplied. The holders of the office were carefully trained in Civil as well as Canon law, and they pursued these studies at foreign universities. Thither they were sent at a youthful age, and there they often led such unclerical lives as to provoke the famous mediaeval query, ' whether an archdeacon could l^e saved.' Moreover, these officials were, as their name implies, kept in deacon's orders, so that priestly hands might not be tainted with the question- able subjects with which the archdeacons often had to deal. Their constantly encroaching jurisdiction was regarded with apprehension by the bishops, and with detestation by the general body of the clergy. The second result — an outcome of the first — was the growth of jurisdiction by Officials and Commissaries. For, in order to limit and, as far as possible, to supersede the action of the archidiaconal court, about the middle of the twelfth century the bishop began to appoint his chancellor or chief secretary to a newly created office of Official, that is, a judge-ordinary to exercise all the jurisdiction inherent in the person of the bishop himself. No appeal was allowed from the official to the bishop, who, however, generally reserved certain cases for his own personal hearing. The official was at first appointed for the life of the bishop from whom he held his commission ; but his position ultimately became permanent. A third result of William I's action was the growth of Peculiars. Before the Norman Conquest the bishop and the cathedral chapter held their estates in common, and both the seignorial and the spiritual jurisdictions were exercised by the bishop and his officers. But disputes were 560 ENGLISH CONSTITUTIONAL HISTORY constant ; so that after the Conquest, the lands of the cathedral church, together with the spiritual and secular juris- diction, were all divided between the bishop, the chapter, and even individual members of the chapter. There thus came into existence a number of small ecclesiastical courts known as Peculiars, with such administrative jurisdiction as was implied in the right of granting marriage licences, proving wills, hearing complaints, and inflicting penances. Under this same head is to be included the jurisdiction exercised by the greater monasteries and by the king's chapels royal. The fourth and final result of William's measure was the growth of 1 E. C. C. a complete hiera7-chy of ecclesiastical courts} They mounted ^^' from (i) the rural deans, who only administered custom, not Canon law; through (2) the archdeacons, who possessed a double power both of (a) ordinary ecclesiastical jurisdiction, which differed in each diocese and was often regulated by agreement with the bishop, and of (/3) visitation to hear com- plaints when the bishop did not go round. A parallel to the shire court was found in (3) the diocesan or consistory court of the bishop, which heard cases both in the first instance and on appeal from the archdeacons' courts. This was held by the chancellor as the official principal in each diocese, and from it lay appeals to (4) the provincial court of the archbishop alone. Of these provincial courts for the province of Canterbury there were no less than four — {a) the Court of Arches, held at St. Mary-le-Bow (de Arcubus) Church by the official principal of the archbishop, which acted as the court of appeal from all the diocesan courts and as a court of first instance in all eccle- siastical matters, perhaps by virtue of the archbishop's authority as papal legate ; (p) the Court of Audience, held at St. Paul's in the jurisdiction of the archbishop and of co-ordinate authority with the Court of Arches ; {c) the Prerogative Court, which managed the jurisdiction with regard to wills ; and {d) the Court of Peculiars for thirteen London parishes which were exempt from the Bishop of London's supervision. The Province of York possessed only two courts — the Chancery, Eccle- answering to the Court of Arches, and the Prerogative siastical Court. 2 ^ ' „ An enumeration of the courts carries us naturally to the 24-2S. lcL') usurped by the papacy and acquiesced in by the Crown. This included the papal assumptions of patronage by provisions, the hearing of appeals at Rome, and the levy of 1266. annates or firstfruits which was begun by Pope Alexander IV 1316-1334 and was made into a general obligation by Pope John XXII. But the claim of the papacy was at times wider than this. It put forward not only Gregory VII's general claim of the inherent superiority of the spiritual to the temporal power, but a special claim to superiority over England. Gregory VII demanded homage of William I, which was refused. Henry II accepted Ireland at the hands of the pope. His alleged sub- mission of England after Becket's murder was only a personal submission in a spiritual sense, and the offer of the legateship to him is a fable. It was John's surrender and homage which first created the idea of a feudal relation between the English king and the pope. But this was definitely repudiated by Parliament at Lincoln in 1301, when Boniface VIII interfered on behalf of Scotland; and in 1366, when Parliament refused the further payment of John's tribute and even the satisfaction of long arrears of payment. Finally, in 1399, in comment on Richard IPs application to the pope to confirm the king's unconstitutional acts. Parliament roundly declares that the Crown and the 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 CHURCH 565 The exercise of this royal supremacy was called forth chiefly in connection with the appointment entirely diverted to secular purposes ; for not only were '^~ '" twenty-two grammar schools founded, but institutions for the 58o ENGLISH CONSTITUTIONAL HISTORY relief of the poor were largely endowed, such as Christ's Hospital for orphans, St. Thomas' and St. Bartholomew's for the sick, and Bridewell for the ruined, sion^ofthe ^^^ ^^^^ abolition of all the houses of regular clergy, Henry monas- VHI was not acting altogether without precedent.^ At the teries. outbreak of Henry V's war with France a number of houses 1 Gasquei, affiliated to foreign orders were taken into the king's hands as df] alien priories. Archbishop Warham, Cranmer's predecessor, En,o: Mon- had taken an unprecedented course in holding a visitation of asteries,\. the monasteries in his province. Wolsey had gone further ; c aps. n-ni. ^^^ ^^ j^^^ obtained a papal bull for the suppression of forty 1528. small monasteries, from the revenues of which he founded his Cardinal College. Henry VHI, too, had supplied himself with 1534- ^ precedent by the suppression of the order of Observant ■•^ Gasquet, Friars as opponents of his divorce.' The first step towards op. at. 1. ^ general measure was the nomination, in iK^,^ under the Act chap V ' .j^o of Supremacy, of Thomas Cromwell as the king's vicar-general, with complete power to appoint his own agents and for the time to supersede the jurisdiction of the bishops. The suppression itself was carried out by two successive Acts — 1536- (fl) 27 Henry VHI, c. 28, which suppressed all those houses with incomes under ^200 a year. These numbered 376 out of 6oo*houses in all, and their joint incomes reached ;^3 2,000. 1540. (/;) The Act 31 Henry VHI, c. 13, both confirmed to the king the abbeys which had been surrendered by their owners who had taken part in the Pilgrimage of Grace, and also provided for the surrender of all the monasteries which yet remained. The results of this wholesale destruction were numerous and important. In the first place, constitutionally the balance between spiritual and temporal peers in the House of Lords was altered. In the Reformation Parliament which met in 1529, the Lords comprised forty-four lay peers, twenty bishops, and twenty-eight abbots and priors. These last entirely disappeared — a fate which they thoroughly deserved, for they offered no opposition to the dissolution of the smaller monasteries and were themselves destroyed individually. A second result was the transference of an enormous amount of 3 Gasquet, property.' The annual income of the monastic lands has been ii. chap. X. reckoned at ^200,000. The value of their moveables was enormous. Some of the money no doubt was reserved for THE CHURCH 58 1 religious purposes. Six bishoprics were founded ; some of the monasteries became collegiate churches, such as Ripon and Beverley ; many of the abbey churches were left for the parishes. 15ut enough remained in the king's hands to have saved him from the necessity of recourse to Parliament. For- tunately he found himself compelled to buy the acquiescence of the country in the religious changes which had arisen out of his quarrel with Rome ; and his lavish grants of monastic properly, carrying with them not only lands but the right to tithe, raised up a new class of country gentlemen who took an active part in the literary, religious, and political movements of the time ; as justices of the peace, monopolized the local administration ; and as members of Parliament, began before long to vindicate its power and privileges against the Crown itself. Other results do not concern us here. § 88. The government of the organized Church may still be Convoca- dealt with under the twofold head of councils and courts. '^^°"- Among the former, Convocation alone calls for detailed treat- ment as involving important constitutional questions. It is important to inquire how far Convocation was consulted in the ecclesiastical changes. Two preliminary points must be borne in mind. The first concerns the authority which the sovereigns conceived to have been conferred on them' by the title of Supreme Head. Now, none of the three sovereigns who effected the settlement of the- Church, had the least intention of subjecting their ecclesiastical authority to the supervision or arbitration of Parliament. Henry VHI used the aid of Parliament to fight a hostile Convocation ; but he intended to maintain the old ecclesiastical system as a frame- work for the exercise of his new ecclesiastical despotism. Edward VI and his ministers were bent on destroying the old framework of Church organization by means of the same despotism ; and yet even they submitted many important measures to Convocation. Elizabeth, following in her father's footsteps, was careful first to secure a Convocation which would accept the Prayer Book ; hut when this was accomplished she would not allow Parliament to interfere with her ecclesiastical prerogative ; while at the same time Convocation under her licence passed Canons to which, however, she gave or re- fused authority at pleasure. A second point to be rcmem- 582 ENGLISH CONSTITUTIONAL HISTORY 1 E. C. C. 74- Its action in the Reforma- tion. 26 Hen. VIII. c. I. '^£. C. C. 142-143. 25 Hen. vni. c. 19. 1534- 1537- 1542. bered is, that where the record of Convocation is lost, or when the journals of Convocation note that silence was imposed on its members, the presumption is not necessarily against the co-operation of Convocation in matters which had hitherto been submitted to it and which were then being transacted in Parliament.^ These two points will help to an appreciation of the follow- ing facts.- Under Hefiry VIII the consent of the Church was necessary to two separate kinds of changes — those in the con- stitutional position and organization, and those in doctrine and ritual. As to the first point, the Act of Supremacy was based on the recognition of the royal supremacy by Convocation in 1531, and still omitted the words limiting that supremacy which had been omitted both in a form of submission required from individual clergy in 1534 and in the Act of Appeals in 1533. The subsequent Acts extending that supremacy, which will be mentioned presently, do not seem to have been sub- mitted to Convocation. The second great Act affecting the constitutional position of the Church, was the Act for the sub- mission of the Clergy. Of this, part was in the Submission of the Clergy made by Convocation in 1532; and it seems probable that the more important part of the Act, which regulated appeals, was also laid before Convocation. There is, however, no direct proof of this. In the settlement of doctrine and ritual, the Ten Articles of 1535 were accepted by Convocation alone; the Six Articles of 1539, reaffirming some of the prominent Catholic doctrines, had the approval of both Convocation and Parliament. Most of the changes made in these particulars seem to have been authorized by the king "alone, though some were submitted to Convocation. Thus, in 1537 the king licensed Matthew's Bible; in 1539 he authorized the possession of Bibles in private houses; in 1546 he forbade the use of Tyndale's and Coverdale's translations. On the other hand, in 1543 Convocation ordered the curate in every parish to read the Bible to the people on holydays ; and while the English Litany was authorized by the king, the Lord's Prayer and other English portions of the breviary were submitted to Convocation. Again, the ' Institution of a Christian Man ' was authorized by the king, though the ' Necessary Erudition ' was laid before Convocation. There are, THE CHURCH 583 moreover, numerous indications that even when the fully pre- pared measure was not forthcoming, Convocation was used as a consultative body both in matters authorized by the king and in those legalized by statute. Utider Edward VI, while, on the one hand, the assent of Convocation may have been given to the first Prayer Book, to the administration of communion in both kinds to the laity, and to the right of clerical marriage, before these were actually legalized ; yet, on the other hand, there is no record that Convocation was consulted with regard to the Ordinal for the consecration of bishops which was published separately in 1550, to the second Prayer Book of 1552, to Cranmer's Catechism and the Forty-two Articles of 1553, and to the ' Reformatio Legum ' or Reform of Eccle- siastical Laws. All these were the work of small committees which held such a vague relation to Convocation as might arise from the fact that many of them were appointed in accordance with its petition. The hostility displayed by Convocation at the beginning of Elizabeth's reign, caused her to use the sanc- tion of Parliament alone for the restoration of the service-book of Edward VI. But when she had once procured a favourable Convocation, she allowed no interference with its action save such as she conceived to be in accordance with the exercise of the royal supremacy. The whole position of Convocation towards the king was Its position changed by the Reformation. This was the result of the towards the Submission of the Clergy of 1532, followed by the Act for the submission in 1534.^ By these. Convocation was made 1 Gee and to acknowledge {a) that no legislation by the clergy was valid Hardy, without the king's assent and permission for its execution, and ^^ ' '^^' that Convocation could be assembled only by the king's command ; {b) that a reform of the ecclesiastical laws should be undertaken by a royal commission of laity and clergy, and that meanwhile with the king's approval the ancient laws of the Church should stand good; (r) by the Act of 1534 pro- vision was made for ecclesiastical appeals to be taken to the king in Chancery. The change in the attitude of the king towards Convocation after the Reformation, may be de- scribed as the substitution of a positive for the negative attitude. Thus, whereas up to 1532 the king contented himself with prohibiting the ecclesiastical assemblies from enacting 584 ENGLISH CONSTITUTIONAL HISTORY anything contrary to the law of the land, while Convocation met at the archbishop's summons and not at all necessarily, though for convenience sake, at the same time as Parliament ; fioiv Convocation meets only at the sovereign's will ; it can do nothing at all Without his assent ; its legislation is subject to the revision of a royal commission ; and appeals against its laws are made to a royal secular court. It was probably this curtailment of its authority even over the clergy, which from 1546 made it necessary that the clerical tenths granted to the Crown should receive confirmation in Parliament, and thus should be raised, if needful, by coercion through the secular power. But it was not until after the Restoration that a verbal agreement between the Chancellor and the Archbishop did 1664. away with the clerical right of self-taxation. The result of this surrender was important if not serious. The bulk of the clergy were Tories and even Jacobites : the bishops of William III and of George I were Whigs. The quarrels between the two houses of Convocation caused its abeyance for ten years under William III ; and the action of the lower house of Convocation in what is known as the Bangorian controversy, provoked by a sermon of the Whig bishop, Hoadley, determined the Government of George I to silence the whole body. From 1 71 7 until 1840 the Church as an organized body had no con- stitutional means of expressing its united opinion. Meanwhile, the number of subjects on which Convocation could legislate has been much curtailed : its decrees are not binding on the laity unless accepted by Parliament : it cannot even conduct a trial for heresy, although the condemnation of heretical books is still within its province. Convocation has instituted inquiries and discussions, and has made reports through com- mittees ; and a few of its recommendations, chiefly touching matters of services and ritual, have been embodied in Acts of Parliament. Eccle- § 89. The old ecclesiastical courts of archbishop, bishop, siastical archdeacon, and such peculiars as had survived the dissolution after the '^^ ^^^ monasteries, continued to exist after the Reformation, Rcfortnii- and were held under the authority of the archbishops, bishops, tion. ^j^jj other ordinaries. The changes made by the Reformation J _ „ may be conveniently classed under the five heads of Appeals, 39' " ' Judges, Law, Jurisdiction, and Authority. As to Appeals} THE CHURCH 585 the Act in Restraint of Appeals arranged for appeals from the 24 Hen. archdeacon's court to that of the bishop ; from that of the bishop ^^^^- ^- ^^• to that of the archbishop ; and further — but only when the king was concerned — to the upper house of Convocation. This was modified by the Act for the Submission of the Clergy which 25 Hen. • \'l II C IQ decided that appeals should go from the archbishop's court to the king in Chancery. This was the foundation of the Court of Delegates of Appeals which formed the supreme tribunal of appeal in ecclesiastical causes from 1559 to 1832. Its functions were transferred, by two statutes of William IV's reign, to the 2 & 3 Will. Judicial Committee of the Privy Council. As to/ud^es, a statute ^^^- ^- 92- of 1545 allowed Doctors of Civil Law, though laymen and |y^ ' * married, to act in this capacity; This was most loosely in- ._ y^^^ terpreted, and even the qualification of Doctor was regarded VHI. c. 17. as unnecessary. Attempts were made to alter it, and a Canon of 1604, while leaving to the ecclesiastical judge, however qualified, the power of suspension and excommunication, reserved to the bishop the sentence of deprivation or deposition. The question of the Larv administered by the courts is rather more complicated. The Act for the Submission of the Clergy gave to the king the power of appointing a committee of sixteen clergy and as many laymen to revise the existing canons and constitutions. By subsequent statutes this power was given to the king for life. It was renewed to his successor by an Act 3 & 4 Edw. of 1549-50, under which three commissions were issued. ^'^- ^- "• Meanwhile, in the last year of Edward's reign. Archbishop Cranmer and the foreign reformer, Peter Martyr, completed a ' Reformatio Legum ' which, however, was never authorized, though it was subsequently published. The power was again 1571. renewed to Elizabeth on her accession ; but after some in- effectual attempts in her first Parliament, nothing more was heard of the matter. The laws, then, which in the absence of this revision the ecclesiastical courts had to fall back upon,' ' £. C. C. consisted of (i) the Canon law of the Church so far as it did 45- not run counter to the Common law or the royal prerogative : (2) the king's ecclesiastical laws, such as those relating to the Prayer Book and the Articles, made by virtue of the royal supremacy : (3) the Canons of Convocation licensed by the king : (4) royal proclamations issued by virtue of the Acts of Supremacy and Uniformity. Of the Canons there were three 586 ENGLISH CONSTITUTIONAL HISTORY sets — those of 1597 and 1604, which, since they have never received parUamentary sanction, are not regarded as binding on the laity; and those of 1640, which, owing to the circumstances under which they were drawn up, are not regarded as having authority at all. The Jurisdiction of the ecclesiastical courts was of course much diminished. In the first place, the Statute law quite overrode the Canon law. The authority of the pope had been annulled by statute, which thus very materially limited the matter of the Canon law. Prohibitions from the secular courts to stay trial or sentence in the church courts were no new thing ; but now the judges issued them with greater freedom, while, even in the ecclesiastical courts themselves, Common and Canon law were of equal authority, and, in case of a conflict, the Canon law had to give way. Nor was this all ; for, in the second place, the Courts of Common Law obtained concurrent jurisdiction with the ecclesiastical courts. Under these circumstances it is perhaps scarcely astonish- ing that the church courts decayed. Nor did the fact that the bishops preferred to gain their ends by a use of the powerful Court of High Commission ^ help to strengthen them. 49-50. Both Edward VI and Mary, at the beginning of her reign, Protliero, had considered themselves justified by Henry VIH's Act of xl-xlvii. Supremacy in issuing special commissions for inquiry into heresies. Those of Edward VI, issued in 1549 and 155 1, were empowered to exercise full jurisdiction ; that of Mary in 1557 ^^'ss limited to inquiry. Acting upon these precedents and, moreover, definitely authorized by her Act of Supremacy, Elizabeth issued an extensive commission to nineteen persons 1559. for the execution of the Acts of Supremacy and Uniformity. The inquiry was to be conducted 'as well by the oaths of twelve good and lawful men as also by witnesses and other ways and means ye can devise,' and the commissioners were empowered to hear and determine all cases which could be included under a wide interpretation of the application of the two Acts. Thus not only are the punishment of heresy and absence from church committed to them, but they are even empowered ' to visit, reform, redress, order, correct and amend all offences which, by any spiritual or ecclesiastical power, authority or jurisdiction, can be so dealt with.' Finally, the commissioners are given the assistance of 'all justices of the E. C. C. TIIK CHURCH 587 peace, officers and faithful subjects." This commission formed ^ Prothero, a precedent for all those which were subsequently issued, the ^^7-232. chief differences being that the execution of other Acts besides W the two already mentioned was added to the work of the commissioners ; that the powers entrusted to the latter were definitely stated or extended ; that the number of commis- sioners Avas increased ; and that often a commission was issued to take effect only in one of the two provinces or even in a single diocese. The connection of this court with, and its effect upon, the purely ecclesiastical courts was of immense importance. For those who came to it, it was a court of first instance and, except for a short period, not subject to appeal. James I's commission of 1620 provided for the appointment by the king's favour of commissions to review its decisions. At the same time, neither did it supersede the ecclesiastical courts of the ordinaries, nor was it, like the Court of Delegates, a court of appeal from them. Yet a very brief account of its jurisdiction will suffice to prove the blighting effect of its existence on the ordinary Church courts. ' Every offence that could be treated as ecclesiastical was inquired into ; every offender, accused or suspected, tried and punished or acquitted ; every device for obtaining information was used ; every claim for the assistance of secular justice was made and, as far as possible, enforced ; every method of instituting a suit was allowed.' - By the grant of writs of Habeas Corpus and by 2 ^. c. C. Prohibitions, the Common Law Courts in vain tried to restrict 5°- the action of this powerful commission. It is not difficult to understand that so long as it existed, no important case touching doctrine or ritual could well find its way into the Court of Delegates, whose work was consequently somewhat restricted in range ; while, since all important offenders were brought straight before the commissioners, the work of the ordinary courts was confined to such unimportant cases as would not need or would not be allowed an appeal. It is, however, difficult to understand how the more single-minded bishops of the time permitted themselves to make use of such commissions. It may be that they ' saw in some such engine the only safeguard against anarchy.' But in whatever way they justified it to themselves, it seems certainly true that 'the result of the working of the court was morally bad and politically destruc- 588 ENGLISH COXSTITUTIOXAL HISTORY tive.' It is no wonder, then, that the Long Parliament abolished 1 Gardiner, the High Commission,^ and that James II's attempt to revive Co>/s/. !(. jj^ jggg ^vas met by its condemnation in the Bill of Rights Doc/.s: 112. ^ ^. . ,., -S C t^iA ^^ Illegal and pernicious. From the abolition of the High Commission down to 1832, no important change was made in the ecclesiastical courts. The courts were still the old courts of the archbishop, bishop archdeacon, and such peculiars as had survived the dissolution of the monasteries. The jurisdiction still ranged over an exten- sive class of cases, including such temporal matters as wills and marriages ; matters partly temporal, partly spiritual, such as suits for tithes. Church rates, seats and faculties ; and spiritual offences, such as immoral conduct of the clergy, and brawling and defamation of the laity. Both the jurisdiction and the courts have been reduced. As to the former, some ' offences, such as brawling and defamation, are punished else- where ; some, such as Church rates and tithes, have been compromised ; some, such as testamentary and matrimonial causes, have been handed over to specially constituted courts. As to the courts, the peculiars have practically been extin- guished ; the court of the archdeacon is rarely used ; the powers of the bishop have been regulated and indirectly curtailed in favour of the courts of the province by the Church Discipline Act of 1840, amended by the recent Clergy 1892. Discipline Act which provides for the trial of offences against 1874. ecclesiastical law, and by the Public Worship Regulation Act which deals with the trial of offences against the ceremonial law. Finally, on the formation of the Probate and Divorce Courts in 1857, in both provinces the Prerogative Court of the archbishop lost its jurisdiction over matrimonial and testa- mentary matters : the Court of Peculiars disappeared with the abolition of the exempt position of the thirteen parishes to which it applied : the Court of Audience, or sphere of the archbishop's personal jurisdiction, has practically fallen into disuse, although, despite the archbishop's declaration to the contrary, it has been thought to have been revived for the 1892. hearing of the recent case of J^ead v. ^/le Bishop of Lincoln; and there remains the Court of Arches alone, presided over originally by the official principal of the archbishop, whose office is now merged in that of the Dean of Arches. But by THE CHURCH 589 recent legislation even this official has become little more than-^ ^ - H ~ ff^ a nominee of the Crown ; for, the Public Worship Act of 1874 ) % '2- provided not only that the appointee of the two archbishops <2^ v -- as judge to carry out the Act, should be confirmed by the Crown, but that in each province he should succeed as of right to the place of official principal as it became vacant. The authority of the ecclesiastical court has been further curtailed by the transference of the jurisdiction of the Delegates of Appeals to the Judicial Committee of the Privy Council. • § 90. All that has been said hitherto concerning the effect Relations of the Reformation upon the organization of the Church, forms '^^ Church a fitting preliminary to the consideration of the changes wrought after the by that movement in the connection between Church and Reforma- State. This may be summed up in an analysis of the inter- '^'°"' pretation put upon the royal supremacy. The power claimed The royal by Henry VIII, under the title of Head of the Church, was ■'supremacy. fourfold.^ It included, in the first place, the king's ecclesias- 1 £_ c. C. tical prerogative which, as we have seen, had always been 37- maintained by English law ; and, secondly, the papal usurpations from the Crown by provisions, appeals, and annates. These Under were recovered by two statutes. The Act in Restraint of Pay- Henry V'HI. ment of Annates was passed provisionally,"-^ then confirmed by 2 Gee and the king in letters patent on July 9, 1533, and finally, con- Hardy, firmed and supplemented by parliamentary statute.'' The e c C Act of Supremacy or the Style of Supreme Head, defined the 210, king's position as that of ' the only supreme head on earth of ^ Gee and the Church of England.' It gave to the headship two sets Hardy, '^ ° '■ 201. of functions— one which has been described as indeterminate, e. C. C. consisting of such powers as were supposed to be inherent in 218. the title of head, namely, the enjoyment of the honours, dignities, privileges, &c., to the said dignity belonging : another determinate set of functions, such as were authorized by the statute, namely, the authority to visit and reform all ecclesias- tical mischiefs.* But to these two powers were now added ■* Gee and other two which were included under the head of the royal Hardy, supremacy. Thus, thirdly, the king claimed the power usurped ~e^'c. C. 72. by the papacy from the Church of England. This was recovered and added to the Crown by three statutes. The Acts in Restraint of Payment of Annates provided for the appointment and consecration of bishops within the kingdom. 590 " ENGLISH CONSTITUTIONAL HISTORY 1 E. C. C. The Act of Citations/ with a view to hmiting the power which 209- the archbishop had exercised in virtue of his legateship, for- bade any one to be cited out of his or her diocese. Finally, the Act in Restraint of Appeals virhich vi^as amended by the Act - Ilnd 213, for the Submission of the Clergy,- provided for appeals in V^' , ecclesiastical cases up to the king in Chancery. A fourth set (.ee and , , . , , , r Hardy, of powers uicluded in the royal supremacy, was made up ot 1S7, 195- claims which the king had never hitherto put forward. Thus the Act of Supremacy had given the king authority, through a vicar-general, to reform all ecclesiastical mischiefs. The Act 3 Gee and of Six Articles ^ allowed commissions to be given to the arch- Hardy, bishops, bishops, and others to hold quarterly sessions for the trial of those who called in question the definitions arrived at by the king with Parliament and Convocation ; and even justices of the peace were to make a similar inquiry by the 32 Hen. help of a jury. The Act concerning Christ's religion stated VIII. c. 26. that the king had appointed archbishops, bishops, and doctors of divinity to declare the articles of the Christian faith, and enacted that all definitions according to God's word and the Gospel, by the king's advice and letters patent, made by the archbishops, &c., should have the force of law. Finally, 37 Hen. the Act that married D.C.L.S should exercise ecclesiastical VIII. c. 17. jurisdiction, stickled not to declare that the king could exercise all other manner of ecclesiastical jurisdiction ; that archbishops, bishops, and archdeacons have no manner of ecclesiastical jurisdiction but by, under, and from the king ; and that to him is given by Holy Scripture all authority and power to hear and determine all causes ecclesiastical, and to correct vice and sin whatsoever, and to all such persons as the king shall appoint thereto. In fact, these Acts claimed for the king authority to declare articles of faith : but, further, the last two Acts state this position in the preamble as if merely calling attention to what was already known and acknowledged. The error which underlay the whole point of view, was the idea that the exercise of jurisdiction implied the right of personal direction. As the king, although in theory present in all the courts, has no right to take the place of a secular judge and administer justice, so in ecclesiastical matters he has no right to supersede an officer or to issue orders at his own pleasure. Under Edward VI the action of the new power TIIK CHURCH 591 acquired by the king as Head of the Church was pushed even Under further than it had been under Henry VIII, both Orders of ^^^''^''^ ^^• Council and Acts of Parliament being used for the purpose. ) Three illustrations will suffice, (i) With regard to the ap- pointment of bishops, the first Act in Restraint of Payment of Annates,^ passed before the final breach with Rome, provided ^ Gee and that, in the case of every one who was presented to the court 00' of Rome by the king to be bishop of any diocese within the realm, if the pope delayed or restrained or denied his appointment by bulls or in any other way, the king's nominee should be consecrated by the archbishop. It was natural that in the second Act - this menace should be superseded " Ibid. by the definite provision that the election to bishoprics should 204-209. be made by the deans and chapters of cathedrals under the king's licence and letters missive naming the person to be chosen ; and that in default of such election, the king should present by his letters patent. By one of the earliest Acts i Edw. VI. of Edward VI's reign this last method was made the rule, '^' ^' and it was provided that in every case bishops should be appointed by letters patent without either the king's conge d'eiire or letters missive. (2) With regard to the jurisdiction of ecclesiastical officers, at the beginning of Edward VI's reign Cranmer and, possibly, other bishops renewed their commis- sions for the exercise of their ordinary jurisdiction, as if its efficacy were dependent on each individual sovereign. In the same spirit another Act of the same year provided that all processes in the ecclesiastical courts should run in the king's name, since their jurisdiction was derived from him and no courts were held by any authority other than that of the king. During the same reign two general royal visitations were carried out — the first in 1547, to press on the reformed doctrines; the other in 1549, to enforce the use of the English Prayer Book : and during each of these visitations the powers of the bishops were suspended. (3) Doctrinal changes were carried out by the same means. In 1547 a book of HomiHes, and in 1548 a new Communion Office, were published and enforced by authority of the king alone. So^ powerful had the title and authority included in the royal supremacy become, that even Mary, with all her desire for the restoration of the papal power. Under did not scruple to use it at the very beginning of her reign for ^^^''y- 592 en(;listi constitutional history ' Gee and Hardy, 377- - Ibid. 380. ' Prothero, Gee and Hardy, 442. E. C. C. 224. Under Elizal)cth. ^ Gee and Hardy, 418. Prothero, 184. Under tlie Stuarts. Before the Great Rebellion. 1663. the twofold purpose of repealing the Acts of Edward VI's reign and thus restoring the Church to the position in which it was left on the death of Henry VIII ;^ and of issuing Injunctions'- after the manner of Cromwell and Cranmer, for the deprivation of the married clergy and other administrative acts. The first statute of Elizabeth's reign was the Act of Supremacy,^ which, though reviving ten statutes of Henry VIII's reign, did not include among them Henry's Act of Supremacy. It conse- quently abolished the claim to the title of Supreme Head which "Elizabeth's advisers represented to her as unscriptural. The title was changed to Supreme Governor ; and as Elizabeth had no intention of parting with the exercise of the ecclesias- tical supremacji^U ancient jurisdiction over courts and persons was restored. It:-Jias--been^ noticed already_that -the Act of Supremacy also empowered the Queen to appoint a commis- sion with extensive powers, which armed the Crown with irresponsible authority and was the germ of the High Commis- sion Court. It was by virtue of this same supremacy that another set of Injunctions ^ was published, enforcible by this commission. And yet at the same time, while the power of the Crown was thus extended and strengthened, the method of procedure was altogether more moderate. .Thus (i) the Act of Supremacy restored the mode of election of bishops by chapters and in accordance with the conge d'elire of the Crown : moreover, (ii) to Convocation was given the duty of reducing the forty-two Articles to thirty-nine, and of authorizing a second book of Homilies ; though it will be remembered that Elizabeth used her power to annul, as well as to authorize, canons of Convocation : (iii) Parliament was at the same time carefully restrained from meddling in ecclesiastical laws. Elizabeth and the early Stuarts stoutly maintained the inviolable nature of the royal supremacy. Parliament might have a share in taxation and legislation, but the Church was parallel to and not a department of the State, and, consequently, the dealings of the Crown with the Church were not matters for Parliament to discuss. This attitude could be maintained only so long as the nationality of the Church was insisted on and formed a link between Parliament and the Crown. But after the Restoration, when Charles II used his royal supremacy to publish his two Declarations of Indulgence, THE CHURCH 593 Parliament in each case compelled him to withdraw them. 1672. The attempts of James II to use the royal supremacy, as After the Mary before him, to pave the way for reconciliation with ^>^'^^°''^" Rome, only hastened on the transference of authority in this respect also from the Crown to Parliament. Outwardly, the Crown still possesses the old powers of Head of the Church. Convocation is summoned and dismissed by the since the king, and legislates only with the royal assent ; appeal from Revolution the ecclesiastical courts has lain — before 1832, to the Crown °' i°^°- in Chancery ; since that date, to the Crown in Council. But the establishment of the Church means more than this. Non- conformity has been recognized at first by toleration of its members, then by their actual inclusion in the ranks of active citizens. But potentially every Englishman is a member of the National Church ; and thus, although there is no guarantee that a single member of the House of Commons should be an actual member of the Church of England, yet Parliament has the right of interfering by legislation in its internal concerns to an extent perhaps dififiicult to realize ; while the law courts have the duty of considering cases in which, through disputes over property or contracts, the doc- trines of the Church themselves may be subject to legal and secular interpretation. The advantages of a religious establish- ment may be open to debate ; but those who desire all the advantage without any of the necessary compromises, should feel that they must make their choice between a greater and a lesser evil. § 91. Now, a chief cause of the Reformation movement Growth of had been the growth of the sentiment of nationality in Western ^^ligious •1^ ., .... ^, ^ toleration. Europe as agamst the universal claims of the papacy. In England old feelings of independence and hatred of foreign interference had been revived, and had found expression in that idea of the Commonwealth which is a familiar thought of Elizabethan writers. For the proper protection of that Common- wealth it was necessary that the ruler should have cognizance of both the religious and the secular sides of the nation's life ; for, whatever else it might be, its religion was a powerful bond of union in the State. Thus, without pretending in Attitude theory to dictate or in any way to notice religious beliefs, executive except in so far as such beliefs tended to the undoing of the towards 2 Q' 594 ENGLISH CONSTITUTIONAL HISTORY (a) Roman Catholics ; {b) Protest- ant Non- conform- ists. Commonwealth, the sovereign eonsidered it imperative that he should demand from his subjects an outward uniformity of religious practice, which should at least afford a guarantee that they were not disaffected citizens. But the very feeling which led the Crown to disown any intention of inquisitorial judgement over belief, betrayed a consciousness that such belief was a matter for each individual to settle with himself. This was, in reality, to concede the whole Protestant position. Heresy had so often come to nothing, because the Roman Church, while sparing the heretic, had exterminated his opinions. But the Tudor sovereigns practically made room for the heresy, though they punished the individual. It is little wonder then that the country swarmed with men to whom the judicious but cold compromise of the Elizabethan church was distasteful. On the one side stood the adherents of Roman doctrine and discipli7ie in its entirety, regarding England as a lost inheritance, and obliged to rely upon foreign aid. Treated at first as politically dangerous through their obedience to an alien authority, as the struggle w'ith Parlia- ment proceeded, they began to be courted by the early Stuarts as upholders of the divine right of kings ; while, as the Noncon- formists in the Church became more pronouncedly Calvinistic, the assertion of the Catholic position of the English Church disposed the Caroline divines to claim kinship with Rome, and made them seem to be doing everything to bring about an union. Neither James I nor Charles I would ever have betrayed the Church : Charles' sons, on the contrary, did everything to undermine her power, and Romanism once more became the badge of a political party. It was only after all possible danger to the succession to the throne had been for some years removed, that those who had retained the old faith amidst many difficulties and dangers, began once more to be treated as fellow-citizens. On the other side were ranged the Frotesta?iis in the widest sense, whether Noncon- formists or Puritans proper, who were willing to remain members of the Church provided certain changes in outward ceremonial were made ; or Presbyterians opposing to epis- copacy the divine government of a board of presbyters ; or Independents, as yet called Brownists or Barrowists, who claimed for each congregation the right of self-control. The THE CHURCH 595 school of Andrewes and Laud showed tlic incompatibiHty between the Calvinistic theology of the Puritans and the Catholic doctrines which they impressed upon the Church ; the republicanism of the Presbyterians never really obtained a hold in England ; the democratic system of the Independents caused the Church to identify herself more than ever with the monarchy. At the same time Parliament was in the hands of the Puritans ; repressive legislation against Puritanism was impossible ; but, in the disciplinary authority vested in the royal supremacy, the Crown found a far readier means of coercing those who professed to remain members of the National Church, but who desired to effect certain alterations which should remove it to a safer distance from what they conceived to be the erroneous Roman model. But the triumph over the monarchy worked for the benefit of the extreme section of their party, who might be described by way of illustration though not of analogy as the religious Jacobins ; the discredited Puritans hung their heads before the fervent loyalty and vindictive churchmanship of the Parliament of the Resto- ration. Schemes of comprehension were vain, and the Puritans themselves rejected an indulgence of their worship which must be enjoyed in company with the Romanists. At the same time, the attitude of the Church had turned them from Non- conformists — that is, persons unwilling to conform to certain outward ceremonials — to Dissenters, or persons who differed altogether from the doctrines of the Church and stood outside her pale, repudiating and repudiated. But although the Church showed herself more than willing to continue her services to the Crown, it was the Crown itself which cast her off and sought to betray her. The Church became a powerful emblem of nationality ; and while her existence in nominal supremacy seemed to guarantee the country against outside interference from Rome and internal anarchy from a too rampant individualism, the false position in which the Church had been placed produced a considerable loss of enthusiasm in her ranks, and rendered her willing, at any rate, to tolerate the worship of those who had made common cause with her against the Romanists, and ultimately to con- nive at their participation in the government. From such toleration to legal recognition was a natural step, but it took 596 ENGLISH CONSTITUTIONAL HISTORY Disabilities of Roman Catliolics. Before the Great Re- bellion. 1549- 1552- ^ Gee and Hardy, 358, 369- E. C. C. 220, 223. "^ Gee and Hardy, 458. E. C. C. 229. Prothero, 13- 1562. some time to accomplish. Prejudice was strong where argu- ment was weak ; and the utterances of a few persons whose pohtics were more prominent than their reUgion, were inter- preted as expressing the opinions of the whole religious section to which they nominally belonged. There were, then, two bodies — -the Catholic and the Pro- testant Dissenters — against whom the Church found it neces- sary to protect herself, and to whose faith she ultimately extended a legal recognition. Th^ position of the two bodies was so different that it will be well to treat them separately. In each case the process will be similar ; for, it will be neces- sary to notice in order, first, the restraints imposed upon their religious worship and the disabilities in civil life attached to all who were not professing members of the Church, and then the gradual withdrawal of these restraints and disabilities. The measures of the legislature against Romanists may be marked off into two periods. The first of these was coextensive w'ith the reign of Elizabeth and the early years of James I. Until 1570 religious legislation was occupied with a definition of the position of the National Church under the protection of the Crown. This had been begun by Henry VIII's Act of Supremacy, and continued by Edward VI's two Acts of Uniformity, which enforced the use of the two Prayer Books in succession, under penalties which, in the Act of 1549, extended to imprisonment for life for the third offence.^ The reaction under Mary necessitated the re-enactment, on Elizabeth's accession, of the Acts of Supremacy and Uniformity. The former laid upon all beneficed clergy and all civil officials of the Crown, on penalty of forfeiture, an obligation to take the oath of supremacy renouncing the spiritual jurisdiction of every foreign prince or prelate. The latter - forbade the use of any but the Book of Common Prayer and therefore, by implication, the saying of mass ; while, in order to enforce attendance at church, it imposed a fine of one shilling on all absentees on Sundays and holydays. Three years later the abortive con- spiracy of the Poles gave the excuse for another Act which rendered all in holy orders, whether beneficed or not, all recipients of University degrees, and all lawyers, liable to be called on to take the oath of supremacy. A refusal pro- tracted beyond three months made the recusant guilty of high THE CHURCH 597 treason. The obligation was further imposed on all members of the House of Commons, but Roman Catholic peers were saved for more than a century by Elizabeth's declaration of confidence in the hereditary councillors of the Crown. ^ So ^ Proihero, far nothing, except by implication, had been enacted in the 39- nature of a proscription of Romanists as such. But in 1571 the bull of deposition issued by Pope Pius V against Elizabeth in the previous year, called forth a measure of direct defe7ice. The penalties of high treason were threatened to all who 13 Eliz. published bulls from Rome or who absolved or reconciled ^' ^• others or were themselves reconciled to the Church of Rome ; in other words, all priests exercising their functions and all converts.- The systematic attack of the Jesuits which began - Ibid. 60. in 1580 called forth, for the first time, offensive legislation against the adherents of Rome. An Act of 1581, while re- 23 Eliz. peating the threats of the previous Act, and increasing the ^- '• penalty imposed by the Act of Uniformity on absentees from church, to ;!^2o a month or imprisonment until they conformed, also subjected to fine and imprisonment the celebrant and the willing attendant at a mass.^ A later statute authorized the •' Ibid. 74. seizure of two-thirds of the delinquent's lands and goods.'* •* Ibid. 88. In 1584 the Jesuits themselves were attacked in a law which 27 Eliz. not only commanded all kinds of priests, whether Jesuits or ^' ^' others, to leave the country in forty days under penalties of high treason, but even adjudged all who harboured them to ^ /^/^. 83. be guilty of felony, and threatened with fine and imprisonment Gee and any who knew of their presence in the country and did not .^^ ^' inform against them.° A final Act of this reign aimed against ^c giiz, the laity, forbade the persons who, for the first time, were c. 2. described as ' Popish recusants,' to move more than five miles ^592. from their usual place of residence under pain of forfeiture of all their possessions. '' The general effect of these laws was "^ Prothero, that they 'compelled every Catholic to attend the Anglican 9-- service, suppressed absolutely and under crushing penalties Hardy, the celebration of the mass, proscribed the whole Catholic 499- priesthood, and made it high treason for any English priest from beyond the sea to come to England, for any Catholic graduate to refuse for the third time the oath of supremacy, ' Lecky, for any Protestant to become a Catholic, or for any Catholic ^"f* f to convert a Protestant.'" Nor were these laws allowed 10272. 598 ENGLISH CONSTITUTIONAL HISTORY 1604. ' Prothero, 420. - Ibid. 253. 2 Jac. I. c. 4. 5- 3 Ibid. 256-268. After the Great Rebelli.Mi. remain inoperative. About 200 persons suffered the extreme penalty of death, of whom the majority were priests ; and de- spite Burleigh's protestation that no one was put to death solely for his religious opinions, more than half the victims perished after all danger of foreign interference had been removed by the destruction of the Armada. Elizabeth's suc- cessor began with every intention of leniency, being greeted on his accession by the pope and helped in the discovery of plots by the leading Romanists in England. He desired to leave the laity in ])eace, and therefore, shortly after his accession, he remitted the fines incurred under Elizabeth's laws. But at the same time, he hoped spiritually to starve them into union with the National Church by banishing the priests. This was done by proclamation,^ and for further security in case of need, all Elizabeth's penal legislation was confirmed. ^ But such a policy left James the victim of circumstances. A rumour of his own intended conversion caused him, in self- justification, to enforce the recusancy fines ; and the Gun- powder Plot, which was the result of this return to severity, was the occasion of the enactment of the severe law of 1606, by which not only was every Roman Catholic debarred from the professions of the law and of medicine, and forbidden to act as a guardian or trustee, but he was compelled to take a more stringent oath of allegiance, which contained a denial of the papal power to depose kings, and his house was liable to be visited by magistrates in search of arms. But above all, it was enacted that every recusant should receive ' the blessed sacrament of the Lord's Supper ' at least once a year in his parish church under penalty of a fine of ;£bo or the forfeiture of two-thirds of his lands.^ This was the beginning of the use of the sacramental test, which, perhaps more than any other single cause, degraded the ordinances of the Church in the next century to a mere guarantee of political opinions. The unwillingness of the kings rendered impossible any further anti-Catholic legislation under the first two Stuarts. James desired to propitiate Spain, and he and his son promised to humour France by a relaxation of the penal laws. The only hope of the Romanists lay with the Crown, so that under the Commonwealth they were proscribed along with all Church- men, for political as much as for religious opinions. The THE CHURCH 599 triumphant Church of the Restoration attacked primarily the Commonwealth's men in the acts called, somewhat misleadingly, the Clarendon Code. Incidentally, of course, the Romanists were also hit by the prohibition of all services except those of the Church and the application of the sacramental test to all candidates for municii)al office. Charles IPs attempts in the interest of the Romanists, both at indulgence and at compre- liension, failed, and Parliament proceeded to close all avenues to them by the Test Act of 1673. Elizabeth's Act of Supremacy 25 Car. H. did not make the oath contained in the Act a necessary quah- ^- ^' fication for any office except membership of the House of Commons ; and both by neglect of the Act and by the use of disingenuous explanations of the oath when taken, Romanists had held offices in the State. At the moment of the passing of the Act, the Treasurer, Lord Clifford, and the Lord High Admiral, the Duke of York, were both avowed Roman Catholics. It was now enacted that all holders of temporal office must receive the sacrament according to the rites of the Church of England and must make a declaration that they rejected the doctrine of transubstantiation.' The two statesmen resigned ^ Gee and their posts, and five years later the Commons, after several un- Hardy, successful attempts, obtained the assent of the Lords to the '.o"car. H. imposition of a test on members of both Houses, consisting st. 2, c. i. of the oaths of allegiance and supremacy and a declaration ^ 7^- that the worship of the Church of Rome is idolatrous. The requirements of this statute were nothing new to members of the House of Commons ; but for the first time they were made applicable to the House of Lords, and caused the exclusion of about twenty peers, although, much to the chagrin of the country party, the Duke of York was specially exempted from the operation of the statute. Indeed, it was this exemption which led dire'ctly to the introduction of the Exclusion Bill. The Calvinism of William III did not prevent him from having dealings with the pope against their common enemy, Louis XIV; and the Tory party, in feigned alarm and with a real desire to annoy the king, passed an Act n & 12 in 1700 which has been described as 'perhaps the darkest • blot upon the history of the Revolution.' The intention of the Act was to drive the Romanist proprietors of land out of the country. It required that all adherents of the popish 6oo ENGLISH CONSTITUTIONAL HISTORY I Geo. I. St. 2, c. r 55- 3 Geo. I. c. 1 8. Early re- laxations, of the penal code in England, 1778-1791. religion should, within six months of reaching the age of eighteen, take the oaths of allegiance and supremacy and sub- scribe the declaration of 1673 and 1678 against transubstantia- tion and the worship of saints. The penalties for neglect were an incapacity to purchase land, and the transference of an inheritance to the next of kin who was a Protestant. Nor was this all. Perpetual imprisonment was denounced against all priests exercising their functions and all papists who kept schools or took part in the instruction of youth ; nor were children to be sent abroad to be educated as Roman Catholics. The discovery of any who contravened this statute was en- couraged by a reward of ;^ioo. The English Parliament was merely imitating some of the ferocity of its Irish contemporary ; but the statute seems to have taken little effect^, even when it was capped by the equally stringent Acts passed in the early years of George Ps reign. By these, the oaths of allegiance and supremacy and of abjuration of the Pretender were to be taken by all civil and military officers, members of colleges, teachers, preachers, and lawyers ; the two oaths could at any time be tendered by two justices of the peace to any Romanist whom they regarded as disaffected, and his refusal to take them rendered him liable to the penalties of recusancy. Moreover, Catholic landowners who, despite the Act of 1700, had main- tained their estates, were required to register them together with all future conveyances and wills. Nor was this all ; for, the annual Act which established the land tax imposed it on Catholics at a double rate, and in 1722 an additional tax was levied on their property. Such were the chief provisions of the penal code which, had it been executed to the letter, would have exterminated the adherents of Rome. These may have been, as a writer of their religion has described them, a half proscribed and socially ostracized section of English society ; but they owed their continued existence in comparative security, to the general indifference of the people and the admirable conduct of the judges, who refused to subordinate the law to the petty spite of personal enemies. The Acts of George Ps reign are almost justified by the disaffection of the Romanists to the reigning family, and they expressed more nearly than might be supposed, the feeling still cherished by the English people generally THE CHURCH 6oi against the Roman Catholics. For, the first successful attempt at relaxation was followed by the greatest riot recorded in English history. In 1778 Sir George Savile procured the passing of an Act by which the penalties denounced by the 18 Geo. HI. Act of 1700 against popish priests and schoolmasters and '^ °' Roman Catholic heirs or purchasers of land were removed, provided they took a special oath abjuring not only the Pre- tender, but also the temporal jurisdiction and deposing power of the pope, and the doctrine that faith should not be kept with heretics and that heretics may be lawfully put to death. The proposed extension of this Act to Scotland roused an unexpected amount of popular feeling, which culminated in the Gordon riots. For four days London remained entirely 1780. in the hands of the mob. But Parliament stuck to its Act. The petitions for repeal of the late statute were met by a series of resolutions moved by Burke, with the approval of the Government of the day, vindicating the Act and condemning the misrepresentations to which it had been subjected. The only concession, stigmatized by an historian as ' unworthy,' was a bill also introduced by Savile, forbidding Romanists to teach the children of Protestants ; but it was thrown out in the Flouse of Lords. But this Act had done nothing to remove the disabilities of Catholic landowners or the dis- qualifications for nearly all the professions, under which the whole class of Romanists laboured. The removal of some of these was the object of Mr. Mitford's Catholic Relief Act of 1791- Its introduction was preceded by a statement ofjiGeo. HI. opinions obtained from a number of foreign Universities, ^' ^^' against the power of the Roman Church to interfere in civil affairs in England or to release English subjects from the oath of allegiance, and against the supposed Romanist belief that faith should not be kept with heretics. This was followed by a protestation of the leading Roman Catholics to Parliament in condemnation of the doctrines commonly attributed to them on the subject of the papal power of deposing or licensing the murder of sovereigns. It was on this protestation and in imitation of an Irish Act of 1774, that an oath was framed which freed its recipients from many penalties and disabilities. Thus the statutes dating from Elizabeth's time against popish recusants were abolished, and the law recognized the exercise 602 ENGLISH CONSTITUTIONAL HISTORY of Catholic worship and the existence of CathoHc schools. Moreover, Romanist landowners were freed from the necessity of enrolling their wills and deeds, and were no longer liable, on the summons of two justices of the peace, to condemn themselves by refusing to take the oath of supremacy or to make a declaration against transubstantiation. Finally, the restrictions on the exercise by Catholics of all professions connected with the law were removed, and Catholic peers were restored to access to the king, though not as yet to their places in Parliament. But the i\ct was far from complete. A number of restrictions were still imposed. Thus, Catholic chapels and schools, and the names of their priests and schoolmasters had to be registered, and the services must all be conducted with open doors. No steeple or bell was allowed to the chapels ; no endowed college or school must be founded, and no monastic order introduced ; no priest was to wear his dress or to perform a service in the open air ; and, as a final security, no Protestant child was to attend a Catholic school. It should be noticed in connection with this Act, that from this time the double land tax was regularly omitted from the annual Land Tax Act by which it was imposed. Disabilities Meanwhile, in Ireland a penal code far more searching and of Roman proscriptive than had obtained in England, was being subjected I 1 nd "-^ ^ gradual and steady relaxation. A series of laws passed under William and Anne banished the Roman Catholic from civil life. He could neither vote for nor sit in Parlia- ment, he was excluded from the corporations, the magistracy, the entire legal profession, the army and the navy, He was denied the care of youth whether as guardian or school- master. If he was not denied the exercise of his religion, the full means of its continuance was much hampered by the proscription of all bishops and other ecclesiastics claiming to exercise jurisdiction ; and while regular clergy were forbidden, all secular priests had to be registered and were subsequently compelled to take the oath of abjuration of the Pretender. The landowner was also worse off than in England. He could neither purchase nor inherit land, nor bequeath it by will. He could not intermarry with a Protestant. His estate descended ec[ually to all his papist sons ; but the eldest, becoming a Protestant, could turn his father into a life THE CHURCH 603 tenant, and so treat the fee simple of the land as his own possession. Soon after the middle of the eighteenth century the relaxa- Relaxa- tion of these prohibitions was begun by the action of the Lord- ^^°"^' Lieutenant, who in 1759 directed that marines should be raised from the Romanist districts ; and the licence was extended soon afterwards to recruits for the army. In 1774, the first i774- Statute which dealt with the matter, merely allowed Catholics to attest their loyalty by taking before a justice of the peace the oath of allegiance and making a form of declaration renouncing the Stuarts and certain doctrines commonly attributed to the Romanists as to the treatment of heretical sovereigns and their followers. Meanwhile, the many attempts which had passed the Irish Commons only to be rejected by the English Privy Council, to allow Catholics to lend money in mortgages upon land, ended in the more generous Act of 1778, which not only 1778- permitted them, after taking the oaths of the Act of 1774, to hold leases of land and to inherit land, but removed alike the necessity of an equal division among all the sons and the premium hitherto placed by the law upon the apostasy of the heir. An Act of 1782 further allowed those who took the oaths of 17S2. 1774, to purchase and bequeath land so long as it was not in a parliamentary borough. It also abolished the registration of priests and the prohibition on the presence of bishops and regular clergy in the country ; and it opened the teaching pro- fession to Catholics, provided they had no Protestant pupils. Indeed, notwithstanding the wide provisions of the Act, it was limited by a number of restrictions, many of which were after- wards copied in the English Act of 1791. In 1792 the legal 1792- profession was thrown open by statute, though Catholics were prevented from becoming king's counsel or judges. By the same Act all remaining restrictions on education, whether at home or abroad, and the severe penalties on the intermarriage of Protestants and Catholics were removed. Finally, an Act of 1793 did away with the few remaining disabilities under ^793- which Catholics laboured as to worship, education, and the disposition of their property. Provided they took the oath of allegiance and a new oath of abjuration of certain pernicious doctrines, they could become elected members of all corpora- tions and receive degrees and hold offices of Dublin University, lion 604 ENGLISH CONSTITUTIONAL HISTORY Trinity College alone being excepted. They could hold all civil and military posts except the very highest, and they could keep arms with certain restrictions. They could exercise the franchise, but were not eligible for seats in either House of Parliament. Catholic In England, owing to the hostility of the king, after 1791 limi'^"'^'^^' there was a long pause in the grant of further concessions. Pitt's attempt to fulfil the expectations of those who had helped him in bringing about the Irish Union, wrought his own fall; and when in 1805 Fox took up the cause of the Catholics, Pitt was found in opposition. After Fox's death, Lord Grenville tried to introduce an Army and Navy Service Bill, which proposed to extend to England so much of the Irish Act of 1793 as related to the army and navy, but without the restrictions which closed the highest ranks to Catholics. The king, however, refused to assent to the removal of these restrictions, and the ministry resigned. It was not till 181 2 that the movement in favour of Catholic Emancipation became serious. The claims of the Romanists were treated as an open question by the newly formed ministry of Lord Liverpool, and among the advocates of complete concession were Canning, Grattan and Marquis Wellesley. Canning's motion for considering the laws relating to the Roman Catholics was passed in the Commons by a majority of 129, but it went no further: and in the next year (1813), although Grattan's proposal for opening Parlia- ment to them was thrown out, an Act was passed enabling Irish Roman Catholics to hold in England all the civil and military offices which the Irish Act of 1793 allowed them to hold at home. This was followed in 1817 by the more general Military and Naval Officers' Oaths Bill, which practically opened all ranks in those services to Roman Catholics and Dissenters alike. But the full measure of enfranchisement did not come for twelve years. Bills were rejected almost annually, until the pressure of the Catholic Association and the disaffected condition of Ireland forced the Tory government of the Duke of Wellington and Sir Robert Peel to concede the demands of the advocates of emancipation at the same time as they suppressed the for- midable association. By the Catholic Emancipation Acts of THE CHURCH 605 1829, a new oath was' substituted for the oath of supremacy, 10 Geo. IV. and Roman CathoHcs were no longer debarred from either ^- 7> § 2- House of ParHament. All corporate and judicial ofifices except those connected with the ecclesiastical courts, were thrown open to them, as well as all civil and political offices except those of Regent, Lord Chancellor in England and Ireland, and Lord-Lieutenant of Ireland. The restrictions or securities were reduced to a minimum, and the dark prognostications of the continued opponents of the bill were in no sense realized. In 185 1 the provision of the pope for the ecclesiastical govern- ment of England by bishops with English titles caused the defensive measure of the Ecclesiastical Titles Bill, which pro- hibited the use of territorial titles by the bishops and made penal the introduction of papal bulls. But no serious effects followed, the titles were retained, the excitement died away, and in 187 1 the Act itself was repealed. The Roman Catholics had been proscribed in the first instance Disabilities as a political party in alliance with a foreign power. The ? 9ncon- Nonconformists met with similar treatment because they desired some change extending from a modification to the total aboli- tion of the existing system of ecclesiastical rule. The Romanists repudiated the Church of England as heretical and schismatic ; the Church drove out the Nonconformists for disciplinary as well as doctrinal reasons. Before the Great Rebellion the Nonconformists would not accept the position which the Anglican party assigned to them ; indeed, many of the clergy and at least two archbishops after Cranmer, namely Grindal and Abbot, openly sympathized with them. The legislation of a Puritan Parliament restricted itself to the Act of Uniformity, with its penalties for non-attendance at the parish church ; and to an Act of 1593 ^ — aimed perhaps against the as yet unpopular ^ Prothero, Independents — by which any one above the age of sixteen, who ^' , should forbear for a month to go to church, should be im- Hardy, prisoned for a month until he made open submission and 492- declaration of conformity. Those who continued obdurate should abjure the realm and not return without Hcence, on penalty of death. The real coercion of the Nonconformists was carried out by the High Commission Court ; and after the Restoration, since it could not be revived, recourse was had to further legislation, which the predominance of the 6o6 ENGLISH CONSTITUTIONAL HISTORY 1661. ' Gee and Hardy, 594- 1662. ^ Ibid. 600, 1664. >■» Ibid. 623. 1665. ■* Ibid. 620. Relaxalion by (ff) Con- nivance ; 1689. ' Gee and I lardy, 654- cavalier interest in Parliament made it easy to carry. The result was the so-called Churndon Code., a series of four Acts passed for the purpose of securing the triumph of the Anglican party. By the first of these, the Corporation Act, the power of the Presbyterians in their strongholds was attacked ; for, the reception of the sacrament according to the rites of the Church of England and of an oath repudiating the Solemn League and Covenant were made the conditions of municipal office.^ The last Act of Uniformity, by re-establishing the Prayer Book and enforcing episcopal ordination, struck at those Presbyterian ministers who had, under the Commonwealth, been lawfully inducted into vacant livings, and had been allowed by the Convention Parliament at the Restoration to retain them.' It took effect on no less than two thousand benefice-holders. The Conventicle Act broke up all services except those of the Church,'^ and the Five Mile Act forbade all clergy who had not taken an oath of non-resistance pre- scribed in the Act of Uniformity, to reside within five miles of a corporate town.^ By this means the dissenters, as they had now become, were to be officially proscribed and spiritually starved in the places where they had the greatest influence. Charles IPs attempts at toleration by Acts of Indulgence, and at comprehension by the Savoy Conference and the introduction of a bill in Parliament, came to nothing ; for^ the dissenters sacrificed themselves to the interests of Protestantism and accepted the Test Act, which excluded them together with the Roman Catholics from all official posts in the State, Their reward was tlie Toleration Act, by which all persons were exempted from penalties incurred under the statutes enforcing conformity with the Church, who should take the oaths of allegiance and supremacy, and should subscribe a declaration against transubstantiation ; if they were ministers, they must further subscribe all except three and a half of the Thirty-nine Articles, and must register their chapels.'"' Thus the Acts which enforced conformity with the Church were not re- pealed ; they were only suspended in the case of those who accepted certain tests. Under these conditions meetings of Protestant bodies for worship were legalized, hut nothing had been done to remove the civil disabilities which excluded all dissenters from Corporations, offices of State and the Univer- THE CHURCH 607 sities. But despite this Act no settled policy was pursued towards the dissenters until the accession of the Hanoverians. The Whig influence procured tlie establishment of the Pres- byterian Kirk in Scotland, and the grant by William III of a small endowment under the name of the regium donuni to the Presbyterian ministers in Ireland ; while dissenters of many shades were using the freedom of the Toleration Act to set up schools for the education of their youth. Through- out Anne's reign the Tories made a desperate attempt to go back upon the Toleration Act, and in the end they nearly succeeded. For, in 171 1, after many previous attempts had failed in the House of Lords, they passed the Occasional '^l'^'^-- Confontiity Act to prevent the more lax dissenters from qualify- ing for office by the necessary reception of the sacrament. This was followed _by _ the Sch ism Act, aimed against the 17 14. dissenters' schools. Any one wishing to keep~a~piiblic ""or" private school or to act as tutor, could not do so without a licence from the bishop ; while he must further qualify himself by engaging to conform to the English liturgy and by having taken within the year the sacrament according to the rites of the English Church. The Whigs were strong enough to obtain a few small remissions in this Act ; and the accession of the Hanoverians robbed both Acts of their in- tended effect. The new dynasty and the wealthy dissenters needed each other's support. But for some years the strength of the Tories and the precarious tenure of the Hanoverians forbade the ministers to take any step which might alienate important classes in the country. Consequently, while there could be no more definite legal recognition of their claims, yet the dissenters obtained a considerable relaxation of the laws aimed against them. Thus the Occasional Conformity and Schism Acts were repealed in 17 18, although, in view of a late occurrence in the City of London, any mayor or magistrate was forbidden to attend a meeting-house with the insignia of his office. Again, the Test Act compelled an official to receive the sacrament within three months of his admission to office : this limit was now extended to six months. Finally, in the first year of George IPs reign it became a custom for Parliament to pass an Act of Indemnity in favour of those who had accepted office, but had not taken the sacrament within the specified 6o8 ENGLISH CONSTITUTIONAL HISTORY time. With a few exceptions, in its early days, probably in order to prevent the dissenters counting upon it, this Act became an 1727-1S28. annual measure until the Test Act was definitely repealed. But at the best it was a connivance at the breach of a law which remained upon the statute-book ; and since it professed to meet the case of those who had been prevented from com- plying with the Act 'through ignorance of the law, absence or unavoidable accident,' it formed no protection for the more conscientious among the dissenters. The extent to which the whole class still lay at the mercy of unscrupulous persons is illustrated by a course of action to which no less a body than the Corporation of the City of London resorted about the middle of the century. A bye-law of 1748 imposed a heavy fine on all who refused to serve in any office of the Corpora- tion to which they were elected ; and, until the severe con- demnation of the House of Lords in 1759, it became a regular practice to elect dissenters as sheriffs and then to exact the fine, because by the terms of the Corporation Act of i66i they could not serve. (/') Repeal. The movement in favour of a repeal of the laws which im- posed disabilities upon the dissenters was almost coterminous with the similar question as affecting the Romanists. But in the case of the former it was the indirect result of an attempt by the latitudinarian party in the Church to obtain a legislative relaxation from the necessity of signature to the Thirty-nine Articles. This was required not only on ordination, but at Oxford it had been a preliminary to matriculation since 1581, and, at the somewhat more liberal Cambridge, to taking a degree since 1616. This movement ended, as far as the dissenters were concerned, in an Act which, after two failures in the Lords, became law in 1779) ^"^ allowed any dissenter to preach and teach on condition that, for the subscription to the Articles hitherto required, he should substitute a declaration that he was a Christian and a Protestant dissenter, and took the Scriptures for his rule of faith and practice. The Irish Parlia- ment in the case of the dissenters also set a worthy example to the English assembly ; for in the same year it admitted them to civil and military offices without enforcing the reception of the sacrament. This was simply to repeal the Test Act in their behalf, and it was soon followed in England by a move- THE CHURCH 609 ment for the repeal of the Test and Corporation Acts. The leaders were Beaufoy, who proposed bills for that purpose in 1787 and 1789, on the latter of which occasions he was only defeated by twenty votes ; and Charles James Fox, whose suggestions, however, were in 1790 thrown out by a large majority. Beaufoy dwelt upon the serious disabilities under which the dissenters laboured and the penalties against which the annual Acts of Indemnity by no means effectually pro- tected them. In answer, Burke instanced the hostility to the Church publicly evinced by such leaders as Drs. Price and Priestley, and the recent overthrow of the apparently strongly established Church in France. The maintenance of a religious test was treated by all speakers as a matter of mere expediency, and the circumstances of the French Revolution lulled the question to slumber for many years. In l8l2 a movement in the right direction was made when Lord Sid- mouth's attempt to restrict the privileges granted to dissenting ministers by the Act of 1779, called forth an unexpected sympathy with principles of toleration, and an Act was passed 52 Geo. HI. relieving dissenters from the oaths and the declaration required ^' ^^' by the Toleration Act and the Act of 1779. It was not until 1828 that the question of the repeal of the Test and Corporation Acts was again mooted. Under the championship of Lord John Russell the measure was now effected (1829), and for the sacramental test was substituted a declaration, to which the House of Lords in Committee added the words 'on the true faith of a Christian,' thus rendering it inapplicable to the Jews. Three smaller grievances still remained. Dissenters were obliged to be married at the parish church ; they were compelled to pay church rates ; and the necessity of signing the Thirty-nine Articles excluded them from the Universities. Lord Hardwicke's Marriage Act had been the first interference i753- with the Canon law which had hitherto prevailed, and had allowed the celebration of a marriage by a priest at any time or place without any restraint of registration or of the necessary consent of parent or guardian. To put an end to the scandals which had risen from what were known as ' Fleet marriages,' it was ultimately enacted that no marriage should be valid unless performed by a clergyman of the Church of England ^fter the banns had been publi.shed thrice in the parish church 2 R 6lO ENGLISH CONSTITUTIONAL HISTORY and a licence had been procured, which, in the case of a minor, should only be granted with the permission of the parents or guardians. A movement for the amendment of this Act in the interest of Catholic and Protestant dissenters alike had taken place between 1819 and 1827 ; but it was not until 1836 that Lord John Russell ultimately passed two bills — one which provided for the civil registration of births, marriages, and deaths ; and a second, which not only authorized the marriage of dissenters in their own chapels registered for the purpose and after due notice to the official registrar, but even allowed those who required no religious ceremony, to enter into a civil contract before the same official. The compulsory payment of church rates received a blow in the decision of the House of 1857. Lords in the case of Burder v. Vele}\ in which was established the power of the majority of a vestry to refuse their levy. But this was not enough. The dissenters required their total abolition, and from 1841 a motion to this effect became almost annual. Not till 1858, however, did it pass the Commons; and, finally, in 1866 a compromise which made the payment voluntary, passed the Commons and became law in 1868. The abolition of all religious tests for entrance to or participa- tion in the benefits of the Universities, finally received the assent of Parliament in 187 1. Separate It remains to notice shortly three bodies who have received treatment exceptional treatment at the hands of the legislature. From (i) The ths fi^st recognition of the principle of toleration the Quakers Quakers; have met with a specially considerate treatment. By the Toleration Act they were required, in the place of all oaths or signatures to declarations, merely to affirm their adherence to the Government, their abjuration of transubstantiation, and their belief in the Trinity and the inspiration of the Bible. In 1695, for the oath required of a witness in a law court, they were enabled to substitute an affirmation ' in the presence of Almighty God.' Even this was withdrawn by a subsequent statute to meet their scruples. They were further exempted from Lord Hardwicke's Marriage Act. In 1833 Mr. Pease, a Quaker, was allowed by the Commons to take his seat on making an affirmation ; and an Act was subsequently passed to enable Quakers, Moravians, and Separatists (extended in THE CHURCH 6l I 1837 to those who had been such) to substitute an affirmation for an oath on their entrance to ParHament. There were, on the other hand, two classes — the Unitarians and the Jews — to whom ParHament was especially slow in extending religious toleration. The benefits of the Toleration Act were particularly limited to all believers in the doctrine of the Trinity. It was not until 1774 that the first Unitarian place of worship was opened by a seceded clergyman ; nor was it until 1792 that Parliament was asked by Fox to extend some toleration to the body. This was obtained in 1813 and it S3 Geo. HI. recognized their religious worship ; while in 1836 they obtained, '^^ ' °' along with all other dissenters, the benefits of the Marriage Law Amendment Act. 'Y\vQ. Jeivs had an equally hard struggle. Together with the (2) The Quakers, they had been exempted from Lord Hardwicke's J^^^' Marriage Act. But they lay under every civil disability, and the repeal of the Test and Corporation Acts which gave relief to the consciences of other citizens outside the pale of the National Church, was for them only the beginning of trouble. For they could not take the oath of allegiance which was sworn on the Gospels, nor the new oath of abjuration ' on the true faith of a Christian,' and there were now no Indemnity Acts under the shelter of which they could creep into office. Consequently, attempts were made at once to meet their case. In 1830, and again in 1833, four Jewish Relief Bills were intro- duced, and on the last occasion even passed the Commons. In 1839, by Lord Denman's Act for amending the laws of evidence, they were able to be sworn on the Old Testament and so to take the oath of allegiance ; while in 1845 they were admitted to corporations. The struggle for admission to Parliament was extended over a long period. In 1847 Baron Nathan de Rothschild was elected by no less a constituency than the City of London. After vainly waiting three years for a measure of relief, in 1850 he attempted to take the oaths with the omission of ' the true faith of a Christian ' ; but the House refused him permission. He continued nevertheless to be elected for the City, and in 185 1 Mr. Alderman Solomons not only was elected for Greenwich, but took his seat within the bar of the House and refused to move. But he found no countenance, as he had hoped, from the law courts, and was 6 12 ENGLISH CONSTITUTIONAL HISTORY obliged to await in patience the action of Parliament, which in a very grudging manner gradually admitted the entrance of Jews. Thus in 1858 the Lords gave way so far as to allow that either House, by resolution in each case, could omit the insurmountable phrase from the oath of abjuration. In i860 this could be done by a standing order of the Commons ; and finally, in 1866, a new form of oath was introduced which changed the position of a Jewish member of Parliament from good-humoured toleration to definite legal recognition. The general result of the growth of toleration has been that while the Church of England still maintains a certain connection with the State, although she neither is endowed by the State nor exercises her spiritual functions as a department of the State ; yet all other religious bodies are as efficiently protected by the law in the exercise of their rights, and are far more free from any external interference in the conduct of their affairs. APPENDIX SOME IMPORTANT CASES IN CONSTITUTIONAL LAW AsHBY V. White (1704). Thk House of Commons had recently resolved that the right of Thomas, 30. election for the borough of Aylesbury was in all inhabitants not in Hallam, iii. 273- receipt of alms. Ashby, an indigent person recently settled in 'l^^^^^ ; j^„. Aylesbury, had been warned out of the parish by the Overseers of 171, 'z^i '78- the Poor, unless he would give security ; and an application for an order to remove him had been made to the local Justices of the Peace. At this moment a general election took place, and the Constables of the borough refused to receive Ashby's vote, because, not having even contributed to the Church or the poor, he could not be regarded as a settled inhabitant. Ashby brought an action against one of them and obtained a verdict with damages at the County Assizes. A motion was made in the Court of Queen's Bench in arrest of judgement on the ground that the action did not lie ; and the judges (the Chief Justice, Holt, alone dissenting) gave judgement for the defendants. The case was taken by writ of error to the House of Lords, who took the same view as Holt, and reversed the judgement. But the House of Commons claimed by resolution the exclusive right for themselves of determining questions of franchise, and declared Ashby guilty of breach of privilege for taking the case to the Lords. The Lords retaliated by resolutions condemning the whole attitude of the Commons. The quarrel was stopped by the prorogation of Parliament. But when Parliament met, it was resumed ; and the Commons com- mitted to Newgate for contempt Ashby and five other burgesses, known as the AYLESBURY MEN, who had brought similar actions. One of these was Paty. Again, with the single dissent of Holt, the judges of the Court of Queen's Bench refused a writ of habeas 6l4 APPENDIX corpus on the ground that the House of Commons were exclusively judges of their own privileges. The Commons committed all the plaintifts' counsel for breach of privilege, and petitioned the Queen not to grant a writ of error (which is a writ of right) which should bring the question of the judges' refusal of the writ of habeas corpus before the House of Lords. The Lords passed some very strong resolutions against the action of the Commons, and petitioned the Queen to grant the writ of error. The Queen, while professing a willingness to grant the writ of error, prorogued Parliament, thus setting all the prisoners at liberty ; and the plaintiffs, resuming their actions, obtained verdicts against the returning officers. BaRNARDISTON 7'. SOAME (1674). Broom, 800-839. Soame, Sheriff of Suffolk, granted a poll for the election of Thomas, 28-29. . . knights of the shire, and the writ was returned to the Chancery with an indenture bearing the name of Sir Samuel Barnardiston as one of the elected knights. But it seemed doubtful whether some of Barnardiston's supporters had sufficient freehold to qualify them for voting. Consequently, at the advice of several influential persons and in order to prevent an action for a false return, Soame attached a second indenture to the writ bearing the name of a different member. The House of Commons confirmed the election of Barnardiston and committed the sheriff for making a double return. Barnardiston brought an action for malice against the sheriff and obtained a verdict with ;^8oo damages. A motion in arrest of judgement on the ground that the verdict was not sustainable in law, was dismissed by the Court of King's Bench. The case was taken by writ of error into the Exchequer Chamber where this iudgement was reversed, and, on a second writ of error, this reversal was upheld by the House of Lords. It was thus decided that an action did not lie at Common law against an officer for making a double return. In the case of Prideaux v. Morris, the same was decided in the case of a false return. By 7 «S: 8 Will. III. c. 7 (made perpetual by 12 Anne, st. i, c. 15) ])rovision was made for remedy by the aggrieved party in the case of both a false and a double return by the returning officer. By 31 & 32 Vict. c. 125, s. 48, remedy was gi\en for neglect or refusal to make a return. APPENDIX 615 BusHELL's Case (1670). The Quakers persistently set at defiance the prohibitions placed Thomas, 96. , , . . , Broom, 115-139. by the various statutes of the Clarendon Code ' upon their Thayer, 166-168. exercise of public worship. In 1670, two, William Penn and ^ ^'"' '"" ^' William Mead, were indicted at the Old Bailey Sessions for preaching in a street in London. Despite the hostile tone of the court, the jury, of whom Bushell was one, acquitted them, and were fined forty marks each by the Recorder for their contempt in ignoring the direction of the court, or in default of payment were committed to prison. Bushell obtained a writ of habeas corpus from the Court of Common Pleas, and Chief Justice Vaughan ruled that the return on the writ was insufficient. The prisoners were said to have been committed for finding 'against full and manifest evidence,' but as that evidence was not stated, the court could not decide as to its sufficiency. Moreover, no charge was made against them of knowing the evidence to be full and manifest and yet finding corruptly. As to the further charge, that their verdict was 'against the direction of the court in matter of law,' the court only charged the jury upon the law as arising out of some matter of fact already found by the jury. If the decision of matters of fact were taken away from the jury, it had better be abolished as useless. But as things were, the jury might often act upon evidence of which the judge knew nothing ; for it might be local knowledge. It was absurd, therefore, for a judge to fine a jury for going against their evidence, of which he knew only a part. Thus it was resolved by all the judges that finding against evidence or direction of the court was no sufficient cause to fine a jury : and the prisoners were discharged. Calvin's Case (1608). James I wished to promote the union of the two peoples of Gardiner, i. England and Scotland, as well as of the Crowns. Commissioners xhomas"48. were appointed by the two Parliaments to treat of the terms of |.^''o°'"' 4-26. . . ... . . Stepney tlec- such union. Their negotiations involved a discussion of the tion Petition r 1- • T^ 1 • , .- , • Case (17 Q.B.D question of naturalization. By royal prerogative, letters of deni- p. 5^). zation could be issued to aliens, allowing them to hold all offices under the Crown, to receive as a gift or to purchase landed property in England, and even to transmit it to their descendants, but not themselves to inherit it. No one proposed that the 6r6 APPENDIX position of Scotchmen born before {atitc-iiati) the king's accession to the Enghsh throne, should be aUered. But the Commissioners proposed that those born after James' accession {post-fiati) should be pronounced by a Declaratory Act to possess all the privileges of natives in either kingdom. James desired to save the prerogative power of denization by its definite recognition in the proposed Act. This made the Commons hesitate. The Scotch Parlia- ment agreed to the king's proposals, and James determined to force the hand of the English Parliament by submitting a test case to the English judges, on which their formal declaration of the right of the post-7iati to naturalization should do away with the necessity of any Act of Parliament. A piece of land was bought in the name of a Scotch child, the grandson of Lord Colvill of Culross, and two actions were brought in his name — one an assize of novel disseisin in the Court of King's Bench, against two persons who were supposed to have deprived him of the free- hold ; the other in Chancery against two persons for detaining papers relative to the title of the land. The defendants demurred on the ground that Calvin was an alien, born after the accession of James to the English throne, and therefore could not hold the land. This, the central question, was taken to the Exchequer Chamber to be argued before the Chancellor and the twelve judges. Two alone dissented from the opinion that the post-nati were not aliens, and could therefore hold land in England. The argument turns on the meaning of allegiance, which is ruled to be due to the king not in his politic capacity, which is different for his different dominions, but in his natural person. Therefore, all those born under one natural obedience are naturalized subjects. Goodwin and Fortescue, or the Buckinghamshire clcctio7i (1604). Hallam, ii, 216- The proclamation which James I issued for summoning his first Gardiner i. Parliament, among other things, forbade the election of outlaws, 162-3, 167-170, and ordered that all returns should be made into Chancery where, Prothero, 325- ^ ' 333. if any should be found contrary to the proclamation, they would be rejected, and any one elected contrary to the terms of the proclama- tion would be fined and imprisoned. The two candidates for Buckinghamshire were Sir Francis Goodwin who had formerly been outlawed, and Sir John Fortescue a member of the Privy Council. Goodwin was returned as elected ; but his name being APPENDIX 617 rejected by Chancery, a second election resulted in the choice of Fortescue. The matter was brought up in the House of Commons which, after hearing the whole case, declared Goodwin duly elected. At the king's desire the Lords asked for a discussion on the matter, to which the Commons reluctantly assented. At the conference in the presence of the king the Commons maintained that, owing to technical omissions, Goodwin was not an outlaw, but that, even if he were, there were instances of outlaws sitting in the House. The king in answer insisted that the Commons derived all their privi- leges from him and that they ought not to meddle with the returns. As to the eligibility of outlaws, he directed them to confer with the judges. They drew up a memorial refusing this, which they requested the Lords as mediators to lay before the king. James declaring himself quite distracted in judgement, as an absolute king commanded the conference for his further satisfaction. The Commons again yielded to the king's command ; but before the formal conference James acknowledged to the committee of the Commons that the House was a court of record and a proper, though not the exclusive, judge of returns. He suggested as a personal favour that both elections should be set aside and a new writ issued. To satisfy the most punctilious members Goodwin wrote a letter acquiescing in the plan. The House had been so far successful that, unopposed, it investigated two other cases of disputed election (Cardigan and Shrewsbury). Hampden's Case (1637). In mediaeval times it had been the duty of the maritime ports, Gardiner, viii. especially of the Cinque Ports, to provide ships for defence of the ^consL^Docts. °f realm. But, like all mediaeval "obhgations, it could be compounded ^"^'j!'^"' ^"'' for. In 1619 a levy was made from a number of port-towns for an Thomas, 23-25. ... Broom, 303-367. expedition against Algiers. In 1634 writs for a similar levy were state Trials, Hi. issued. But since the defence of the country concerned the whole ^" country, in 1628, after Charles' second Parliament, a[ suggestion was made to extend the levy to the inland counties as well. In 1635 this was done. The opposition roused caused Charles to refer the question of the legality of the levy on inland places to the bench of Judges. Ten out of twelve answered that, although in case of piracy the maritime ports of- the country would alone be liable, yet when the whole kingdom was in danger, the country in general should be called upon ; and that of the danger the king was the sole judge. 6l8 APPENDIX In 1636 another similar levy was made and opposition was silenced by another more formal reference to the Judges, all of whom answered to the same effect as on the former occasion. But some of the leaders of the opposition in the country thought that Charles intended to take ship-money as a permanent tax. They, therefore, determined to have the case argued in open court. Some of them refused to pay the small amounts at which their property was assessed. The case of John Hampden was selected as a test. Proceedings were taken against him in the Exchequer and, on his raising a demurrer, the case was transferred to the Exchequer Chamber. There appeared — for Hampden, St. John and Holborne : for the Crown, Solicitor-General Lyttleton and Attorney-Cjeneral Bankes. The case was argued by counsel for twelve days. In view of the extra-judicial opinion of the judges in favour of the king, St. /oh?i conceded that the law of England gave the king power, to the extent of compulsion, to provide for the defence of the country and that he was sole judge of the danger. But he contended that such provision must be by means recognized by law. As the king did not apply the law except through the Judges, so he could not raise extraordinary supplies except through Parlia- ment. Otherwise subjects are at the mercy of the sovereign. In cases of extreme danger such as actual invasion, not only the king but any one, in the name of public safety, may do acts which violate the rights of property ; but in this particular case there could have been no such extreme danger, for writs had been issued for the equipment of a fleet seven months hence ; so that there would have been plenty of time to summon Parliament. Holborne went further and denied that, except in the extremest cases, the king was the proper judge of danger. On behalf of the Crown, Lyttleioii laid stress upon the instances in which kings had taken money without consulting Parliament and upon the necessary delays in getting a parliamentary grant. Bankes refused to argue the question of the circumstances under which the king could exercise his judgement. He quoted a number of precedents for all kinds of claims on the part of the Crown, and ended by asserting in the strongest form the absolute power of the royal prerogative. The Judges delivered their opinions two at a time and on only two sittings in each term, so that it was three terms before they were all delivered. Seven pronounced emphatically on the side of the Crown : two as emphatically on the side of Hampden, followed. APPENDIX 619 for technical reasons, by the other three. Crokc absolutely denied the legality of the writ whether by prerogative, statute or Common law. On the other hand, Berkeley pronounced the law to be 'an old and trusty servant of the king's ; it is his instrument or means which he uscth to govern his people by : I never read nor heard,' he continued, 'that lex was rex ; but it is common and most true that rex is lex.' Finch declared roundly that Acts of Parliament to take away the king's power in the defence of his kingdom were void : no such acts could prevent the king from commanding ' the subjects, their persons and goods, and I say their money too ; for no Acts of Parliament make any difference.' Seven Bishops' C.\se (1688). In April, 1687, James II published his first Declaration of In- Macaulay, ii. 89 dulgence immediately suspending all penal laws in matters Thomas i6-iq ecclesiastical for non-attendance at Church or non-reception of Kroom, 406-492. the sacrament. In April, 1688, a second Declaration of Indulgence was put out followed by an Order in Council that it should be read on two successive Sundays in all the churches and chapels in England. For this purpose the bishops were ordered to distri- bute copies of it throughout their dioceses. Archbishop Sancroft and six bishops presented to the king in the royal closet a petition stating that, in view of late declarations in Parliament about the king's dispensing power, the Declaration was illegal, and that they could not therefore ' in prudence, honour or conscience ' be parties to its distribution or its publication. The Go\-ernment ultimately determined to indict them before the Court of King's Bench for seditious libel. When called before the Council they refused to enter into their own recognizances to appear for trial, declaring that this could not be required of them as peers in such a case. They were consequently committed to the Tower. A week later, when brought before the King's Bench, the Judges decided this point against them ; but they were allowed to be at large on their own recognizances. The bishops were defended by some of the ablest advocates of the day ; the Attorney-General and Solicitor-General for the (Government were very inferior lawyers. The Jury was carefully chosen : the four judges had all shown themselves willing to pro- nounce in favour of the royal prerogative of dispensation. 620 APPENDIX The trial almost broke down over two preliminary questions. The handwriting of the bishops could only be proved by the testimony of Blathwayt, a Clerk of the Privy Council, who swore that he had heard them acknowledge their signatures to the king. The charge of having published the libel in Middlesex (the petition having been drawn up at Lambeth Palace in Surrey) could only be proved at the last moment by the appearance in the witness-box of the Lord President of the Council, Lord Sunderland, who had admitted the bishops into the royal closet with the petition in their hands. The chief defence of the counsel for the prisoners lay in the reading of extracts from the Journals of the House of Commons proving the assertion of the petition that the dispensing power claimed by the king had been frequently declared illegal by Parlia- ment. Somers, the junior counsel, referred to the decisions in Thomas v. Son-el and Goddcn v. Hales as telling against a power of general dispensation amounting to suspension, and pithily declared that the libel could not be, as was alleged, either sedi- tious — because it was presented to the king in private ; or false — because its contentions had been shown to be true ; or malicious — because the bishops had not sought the occasion of publishing it ; or, finally, a libel— because they had only done what the law allows every one to do, namely, to petition the sovereign against 1 Cf. pp. 486- a grievance.^ In reply, the Solicitor-General went so far as to deny '*^9- that the bishops had any power to petition the king outside Parliament. To this view even the Chief Justice demurred. Three of the Judges avoided a discussion of the dispensing power. Two summed up in favour of the Crown, one — the Chief Justice — merely took exception to the particular wording of this petition. Of the other two who declared in favour of the bishops, Powell utterly denied the king's power 'to dispense with any laws what- soever. If this be once allowed of,' he concluded, 'there will need no Parliament. All the legislature will be in the king.' After a night's consideration, the jury pronounced the verdict of Not Guilty. Shirley's Case (1604). E.H.R. viii. 733. Sir Thomas Shirley was elected IM.P. for Steyning in James I's Pj-oihero, 320- ^^^^ Parliament. Before Parliament met, he was arrested for debt Hallam, i. 302-3. ^t the suit of a City tradesman, and was imprisoned in the Fleet. On the first day of the session the attention of the House of APPENDIX 621 Commons was called to his arrest. The Speaker issued a warrant for a writ of habeas corpus : the warden of the Fleet appeared at the bar of the House with his prisoner and was examined. But he refused to release Shirley because that would make him liable for the amount of the debt to Shirley's creditor. The House com- mitted Shirley's creditor to the Tower, as guilty of breach of privilege, and brought in two Acts — a special bill to exonerate the warden from any liability which he might incur by releasing the prisoner, and a general bill safeguarding creditors against loss through the release of prisoners by parliamentary privilege. The special bill was hurried through the Commons and sent up to the Lords with a request that they would move the king to grant his assent to it at once, otherwise its object would be gone. But the Lords doubted 'whether the king's assent to one bill apart do not conclude the session.' While they delayed, the Commons realized that the appeal made by the wording of the bill to the king and the chancellor, would take out of their own hands the de- termination of the privilege for which they were fighting. They, therefore, suddenly changed their tactics, and when the warden of the Fleet refused to surrender his prisoner until the king had given his assent to the bill just introduced, they committed him to the custody of their sergeant and, when he persisted in his refusal unless the chancellor issued a writ, they sent him to the Tower. But the warden's wife proved as obstinate to their demands as her husband, and the Speaker with difficulty stopped a proposal that six members with the sergeant should make a forcible entry into the prison. Then a new bill was brought in on the lines of. the former special bill, but omitting all reference to the king or the chancellor. This was hurried through both Houses in a couple of days. But the warden still remained obdurate, although the Commons committed him 'to the dungeon known by the expressive name of the Little Ease.' At length, probably owing to the secret intervention of the king himself, the warden gave way and Sir Thomas Shirley was released. The warden, however, was not released till four days later, and then only after a humble apology at the bar of the House of Commons. By this time the general bill had also passed the two Houses, and it seems that both this, which being a public bill found its place among the Statutes of the Realm, and the two special private bills which are not included there, all obtained the assent of the king. It has been suggested that the royal assent to the special bill originally introduced was 622 APPENDIX obtained by the chancellor whose jurisdiction it recognized, in order that he might have a pretext for future interference. / Stockdale v. Hansard (1839). Bro°o'!ir8'*°''6' ^" '^^^ ^^^ Inspectors of Prisons for the Home District, in their Erskine May, ii. report to the Government, described as ' indecent and obscene ' Anson, i. 171-174. a Certain book which they had found among the prisoners in Newgate. This report was printed by order of the House of Commons. Stock- dale, the publisher of the book in question, brought an action for libel against the printers, Messrs. Hansard. The case was tried before Lord Chief Justice Denman, and the verdict was given against Stockdale on the plea of justification. But the judge had laid it down that the authorization of the House of Commons was no justification to any publisher or seller of a parliamentary report containing libellous matter. The House of Commons answered this by a declaration that the power of such publication at their discretion ' is an essential incident to the constitutional functions of Parliament,' and that the attempt of any person to question or of any Court to decide upon matters of privilege in a sense contrary to the determination of either House, was itself a breach of privilege. Stockdale, thus encouraged, brought another action against Messrs. Hansard, which was tried in the Court of Queen's Bench. The question involved was whether the printers were justified by the privilege and order of the House of Commons. The defendants said that, at the direction of the House of Commons, they appeared and pleaded this action in order to inform the court, but that their appearance did not imply that the House submitted to the decision of an inferior tribunal a privilege which was essential to the discharge of its legislative functions : that court could not enquire into the extent of the privilege : the plaintiff was merely given an opportunity of denying that the act was done under the alleged authority, or of showing that the authority had been exceeded. But the judges all gave judgement against the defendants. Lord Chief Justice Denman pointed out that neither House of Parliament is supreme by itself, and the opinion of its own privileges by either House may not be correct or its declaration of them binding ; that the courts of law had often discussed questions of parliamentary privilege ; that the publication in question had not been only for the use of the members, nor had it been connected with anything APPENDIX 623 that was under discussion in the House. The only remedy for the Commons was a writ of error which wtauld bring the matter before the House of Lords. From this they were prevented by unwiHingness to submit their privileges to the jurisdiction of the other House, and also by the fact that already by their own declaration they had committed themselves to a definite statement. They resolved, therefore, that to future actions Messrs. Hansard should not plead. Consequently, when Stockdale brought another action and gained judgement against Messrs. Hansard by default, the sheriffs levied damages. The House of Commons proceeded vigorously. It committed to the custody of the sergeant-at-arms Stockdale, his solicitor Howard, and the sheriflfs (to whom the Court of Queen's Bench refused a habeas corpus because they had been committed by order of the House of Commons for contempt^— case of the Shp^riff of Middlesex, 1840). Stockdale 1 Cf. p. 277. brought several other actions, and the House committed several other persons before an Act of Parliament was passed, which provided that such actions should be stayed on the production of a certificate that the paper complained of was printed by order of either House of Parliament. Two further cases arose out of this contest. Stockdale's solicitor, Howard, brought an action of trespass against the officers of the House, who had taken him into custody, and, on the ground that they had exceeded their authority, gained a verdict against them with ^100 damages. His second action against Sir W. Gossett, the sergeant-at-arms, was, on the ground of the informality of the Speaker's warrant, also given in his favour. But this last case was taken by writ of error to the Court of Exchequer Chamber, which reversed the judgement of the Court of Queen's Bench. The judges maintained that the House of Commons had the power to institute inquiries and to take into custody for contempt, and that, as to the form of the Speaker's warrant, the mandates of the House of Commons deserved at least as much respect as those of the superior courts, which protect the officers of those courts acting under them. Wilkes' Cases. John Wilkes, M.P. for Aylesbury, appears as a principal in con- Thomas, 67. nection with several important constitutional questions, (i) The Lecky,' hl'^s"'*' question of General Warrants. In 1762 Wilkes founded a news- g'rsjljng j^,^ •• paper called the North Briton., in ridicule of the advancement of 247-25°; iii. 2-6. 624 APPENDIX Scotchmen to high posts in England under the auspices of the Earl of Bute. No. 45 of this paper, published on April 23, 1763, treating the king's speech with which Parliament had just been closed, as the composition of the Ministry, pronounced it 'the most abandoned instance of ministerial effrontery ever attempted to be imposed upon mankind.' But the Court party wished to restore the personal influence of the Crown, and George Grenville, who had just succeeded Bute as head of the Ministry, agreed to prosecute for libel. The Secretary of State, Lord Halifax, issued a general warrant for the arrest of 'the authors, printers and publishers': under this forty-nine persons were apprehended, including Wilkes ; while his drawers were ransacked under a search warrant, and his papers taken away. Despite his plea of privilege, he was kept in close confinement in the Tower. The Court of Common Pleas granted him a writ of habeas corpus and, in pronouncing judge- ment, Chief Justice Pratt decided not only that Wilkes' arrest was illegal owing to his privilege, but that the issue of general warrants by the Secretary of State and of search warrants on a charge of libel, were equally illegal. Wilkes was released and, in reliance on this judgement, brought actions against Wood, the Under-Secretary who had superintended the search for papers, and against Lord Halifax. The case of WiLKES v. WoOD was tried before Lord Chief Justice Pratt, and a special jury awarded the plaintiff ^800 damages. Lord Halifax by legal delays postponed the hearing of the case against him. The Government retaliated by instructing the Attorney-General to commence an action for libel against Wilkes in the Court of King's Bench. Parliament met November I5> 1763, and Wilkes was attacked in both Houses. Although the case was still before the law courts, the Commons voted that No. 45 of the North Briton was 'a false, scandalous and seditious libel ' which should be burned by the common hangman, and that privilege of Parliament did not extend to the writing and publishing of seditious libels. Wilkes had privately printed a parody of Pope's Essay on Man^ called an Essay o?i Woman. Because this contained notes in imitation of Bishop Warburton's notes to Pope's poem, the Lords condemned it as a breach of privilege and a scandalous libel. But, meanwhile, Wilkes had been wounded in a duel with one of the numerous victims of his attacks in the No7-tk Briton, and retired to France. In his absence he was expelled the House of Commons for having written 'a scandalous and seditious libel,' and in the Court of King's Bench, being found guilty of reprinting No 45. and APPENDIX 625 of printing the Essay on Woman and, not appearing to receive sentence, he was outlawed (February, 1764). Two cases arising out of similar events were — Leach v. Money (1765), in which the printer of the A'i?^///: Thomas, 68. . . Broom, 522-543. hritoti gained a verdict with ^400 damages against the kmg's messenger who had executed the general warrant. The judgement was affirmed by the Court of King's Bench, to which the case was brought hy. writ of error ; and Lord Mansfield also pronounced against the legality of general warrants. Entick v. Carrington (1765), in which one of the writers in Thomas, 69. Broom, 555-007. the Mo7tiior or British Freeholder was apprehended on a search warrant which mentioned the plaintiff's name, but authorized the general seizure of papers. A jury found a special verdict^ for the plaintiff with ^300 damages. In the Court of Common Pleas, where the case of the special verdict was twice argued, Lord Camden (Chief Justice Pratt) denied that general search warrants had ever been legal. (2) The Middlesex Election (1768). Wilkes returned to England, Lecky, iii. 128- pctitioned the king for his pardon, stood as a parliamentary Ers'kine May, ii. candidate for the City of London and was defeated, but was elected '^ ' at the head of the poll for Middlesex. He surrendered at the Court of King's Bench on his outlawry, which, on a technical point, was reversed, and then, for the seditious libel and blasphemy of which he had been found guilty in his absence, he was sentenced to imprisonment for twenty-two months and a fine of ;!{^iooo. Riots took place in his favour. The Secretary of State, Lord Weymouth, by letter authorized the magistrates to use the military force of a Scotch regiment, and an innocent man was killed. The soldiers were publicly complimented. Wilkes published Lord Weymouth's letter with comments. For the three offences — the North Briton (for which he had already been expelled), the Essay on ^ Woman (for which he was undergoing punishment), and the comments on ^ Blackstone {Commentaries, Bk. iii. ch. 23) explains a special verdict to be one in which, some difficult matter of law having arisen, the jury 'state the naked facts, as they find them to be proved, and pray the advice of the court thereon ; concluding conditionally, that if upon the whole matter the court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then for the defendant. This is entered at length on the record, and afterwards argued and determined in the Court at Westminster, from whence the issue came to be tried.' 2 S 626 APPENDIX Lord Weymouth's letter (which was cognizable either by the Lords as a breach of privilege, or by the law courts as a seditious libel) — the Commons expelled him. In February, 1769, he was unanimously re-elected : the House declared him incapable of sitting in that Parliament. In March he was again re-elected : the House again pronounced his election void. Colonel Luttrell vacated his own seat in order to stand against him ; but Wilkes was a third time re-elected by a large majority. The House declared Luttrell duly elected. Wilkes' compensations were that he was elected succes- sively Alderman, Sheriff, and Lord Mayor ; a subscription was raised for him and, his old action against Lord Halifax being resumed, he obtained ;^4000 damages. At the next general election (1774) Wilkes was elected to Parliament and took his seat un- molested ; and finally, in 1782 the resolutions passed against him were expunged from the journals of the House. INDEX Abbots in Padiament, I22, 148 : disappear from Parliament, 580. Abjuration, oath of, 182. Access to Sovereign, right of, a privi- lege of the Houses of Parliament, 261, 602. Act of Settlement, settles suc- cession, 77, 312: § 4, requires signature of Councillors, 106 : § 6, excludes place-holders from Parliament, 106, 186, 218: § 7, alters judges' tenure, 80, 313, 458 : § 8, forbids pardon to stop impeachment, 106, 165. 'Addled' Parliament (1614), 215. Admiral, Lord High, 485, 486. Admiralty, 112, 486. Advertisements, stamp duty on, 450. /Elfred, and English unity, 285 : his local organization, 323 : con- nects central and local govern- ment, 363 : organizes the fyrd, 467 : and the navy, 481 : begins a monastic revival, 551. .•p:ifred"s laws, 85, 386, 388, 418. /Ethelred the Unready, his favour- ites, 329 : raises a navy, 482 : levies Danegeld, 502 : his laws, 3S8, 392. /Ethelstan, begins ealdormanries, 285, 328 : assumes imperial titles, 286. /Ethelstan'slaws, 323, 385, 386, 387, 388, 420. Agricultural Labourer, condition of the, at various times, 59, 60. Aids, feudal, 37-38, 232, 497 : non- feudal, 504, 506. Alien priories, 553, 580. Alienation of land, 18, 61. Aliens, restriction on settlement in England, 446, 521 : disqualified for Parliament, 184, 447. Allegiance, definition of, 85 : oath of, 1 82, 468 : as the basis of fyrd, 467. Aliiiou, case of (1769), 452. Amercements in local courts, 338, 426. Ancient demesne, tenants in, try to escape representation in Parlia- ment, 204. Annates, 577, 589 : Act in restraint of payment of, 589, 591. Annual Parliaments demanded, 221, 226, 228, 259, 260. Appeals, ecclesiastical, before the Reformation, 573-574 : after the Reformation, 585, 590-591. — of treason, 152, 162. — to House of Lords from Common Law Courts, 167-168, 170: from Chancery, 167-168, 170, 382. — from local courts to Crown, 337- — claimed by Chancery over Com- mon Law Courts, 381-382. Appropriation of supplies, 241, 294, 309- Archdeacon, 558, 559, 560. Arches, Court of, 560, 588. Army, vide 7'ahle of Contents, § 67: Roman Catholics admitted to, 603, 604. Arrest, freedom from, a privilege of Parliament, 169, 261-264. 627 628 INDEX Articuli super Cartas (1300), 257, 292, 369 Ashby V. White, case of (1702- 1704), 273, 27s, 283, vide A^ pendix. Ashfords. Thornton, case of (1819), 351- ' Assessed ' taxes, 530. Assessment, of taxes in local courts, 129 : monthly under the Common- wealth, 513. Assize, meaning of word, 354. — Grand, 355, 357. — J udges of, 366, 563. — of Arms (1181), reorganizes fyrd, 292, 375, 468 : § 1, includes feudal tenants, 463 : § § 3, 12, applies only to freemen, 46, 468 : § 9, liabilities determined by jury, 363, 468 : justices to superintend the fyrd, 375, 392 : a means of taxa- tion, 510. — of Clarendon (1166), issued with assent of the great men, 124 : § 1, probable origin of the Sheriff's Tourn, 335, 339, 389 : the sheriffs and justices work together, 100, 364 : § 11, no franchise to exclude the king's officers, 289, 365 : § 12, the jury of presentment, 359 : § § 16-18, regulations about va- grants, 391. — oi dai-rein presentment , 357. — of Measures (1197), 124. — of mort d^ ancestor, 356. — of Northampton (1176), issued with assent of the great men, 124 : § 1, the justice ousts the sheriff, 376 : ihejury of presentment, 359: the consolidation of judicial com- missions, 366 : § 4, deals with wardship, 39, 356. — of novel disseisin, 356. — UtriiDi, 356. — of Woodstock (1184), 124, 372. Associations, political, 489. Attachment, court of, 372. Attainder, 154, 164. Attaint, writ of, 460. Attorney-General, 115, 438, 455, Atiuyll, case of, (1477), 262. Audit of accounts, 242, 294, 309, 544- Auditor of Receipt, 545, 546 : of Imprest, 546. Aylesbuiy men, case of the (1704), 273, vide Appendix. Babiui^ton, case of (1586), 91. Bailift", manorial, 44. Ballot Act (1872), 200, 228, 279. Bank of England, 523, 558. Banking, its origin in England, 536- 537- Bankruptcy Act, 263, 445. Bankrupts disqualified for Parlia- ment, 1^8. Bamardiston v. Soame, case of (1674), 273, vide Appeftdix. Baron, Court, of a manor, 343. Barons, distinction between Greater and Lesser, 28, 123 : Greater, monopolize the Commune Con- cilium, 127: Lesser, shirk attend- ance, 128 : tenure of Greater, 139, 141. Barony, tenure by, 27, 139, 146. Barrow, case of (1593), 449. Bastardy, law of, 412. Bastwick, case of {1637), 450. Bate, case of (1606), 235, 455. Battle, trial by (duellum), 152, 349, 362. Becket, Thomas, Archbishop of Can- terbury, quarrel with Henry II, 566. Bedchamber question (1839), 317. Benefit of clergy, 169, 565-568. Benevolences, 298, 536. Berkeley peerage, case of the, 140. Bill of Rights, limits the succes- sion, 77, 312 : § 1, prohibits the suspending power, 254, 313 : § 2, restrains the dispensing power, 253, 313 : § 3, condemns the High Commission Court, 588 : § 4, for- bids the levy of money by preroga- tive, 313 : § 5, confirms the right of petition, 487 : § 6, prohibits a standing army, 89, 313, 475 : § 9, confirms freedom of speech, 267 : § 10, prohibits excessive bail, 441 : § 13, Parliament to be held frequently, 260, 313. Bills replace petitions, 245, 281 Bishops in the shire court, 160, 328: in the House of Lords, 147, 155, 580: numbers before the Reforma- tion, 546-547 : after the Refor- mation, 578 : mode of appoint- INDEX 629 mem before the Reformation, 565, 57 '-572: after the Reformation, 590-592. Black Death, its eflect on villan -- tenure, 52. 'Blood-feud, 345, 386. Boards of Trade, Works, Agriculture, LocalGovernment, 1 13,415 : Poor Law, 415 : Highway, 417 : Guar- dians, 414, 417. Bookland, 17, iS, 340, 492. Bordars, 23, 47. Borh, 388. Borough English, tenure of, 33. Boroughs, origin of, 8, 418 : growth of self-government in : vide Table of Contents, § § 61, 62. — in Parliament — numbers, 172: early insigniticance of, 177 : un- willingness to be represented, 206 : made into shires, 433. Bol, 345, 346, 419. ' Botless' offences, 341, 345. Bounties on corn, 54, 525 : on exports generally, 525. Bracton,onvillenage, 50: on treason, 86 : on judgement by peers, 152. Bradlaitgh, Charles, case of, (1884), 182, 275. Bribery of M.P.'s, 216. Biukinghainshire Election Petition, case of (1604), 189, 273, vide Appendix. Bitrder v. Veley, case of ( 1 85 7 ), 610. Burdett v. Abbott, case of (iSi-C^, 277. Burgage tenure, 197, 421-426. Burg-bryce or burh-bryce, 418. Burh-gemot, 423. Burke, Edmund, his economical re- form, 217 : opposition to relaxa- tion of the penal laws, 609. Burton, case of (1637), 450. Bushel! , case of (1670), 309, 460, vide Appendix. Cabal Ministry, The, 105. Cabinet, vide 'liable of Contents, § § 16, 46. Calvin, case of (1608), 455, vide Appendix. Camden, Lord (Chief Justice Pratt), condemns general warrants, 444 : his attitude to the law of libel, 451- Campbell, Lord, Libel Act of (1S43), 453- Canon Law, influence in England, •561-563, 565-567. Canons, secular, 552. Canterbury, Archbishop of, becomes legattts natus, 576 : struggle for supremacy with York, 548. Carta Mercatoria (1303), 518, 521. Carucage, origin of, 506 : assessed by a jury, 506 : replaces Danegeld, 504 : its levy resisted, 125. Caursines, foreign merchants, in Eng- land, 534. Celibacy of Clergy, before Reforma- tion, 530 : abolition of, after Reformation, 579. Celtic survival in English nation, vide Table of Contents, § 2. Censorii, 22, 47. Ceorls, 21, 22. Chamberlain, Lord, 98, 108. Chamberlains in the Exchequer, 544. Chambers, case of (1629), 237. Chancellor, Lord, origin of, 378 : king's secretary, 95, 378 : succeeds the justiciar, 107, 379 : member of the Star Chamber, loi : enforces uses, 67 : frames writs, 351. — of the Duchy of Lancaster, 115. — of the Exchequer, origin, 112, 369- Chancery, its separation from the Council, § 14, for its history, vide Table of Contents, § 56 : quarrel of Coke with, 457. Chancey, Sir W., case of (1611), 457- ' Chandos ' clause in Reform Act of 1832, 194. Chantry priests, 550, 569, 579. Charity Commissioners disqualified for Parliament, 187. Charlies I, his priv^ Council, 104, 105 : his quarrel with Parliament, 236-237, 304 : his treatment of the judges, 455 : his means of raising troops, 467 : his use of martial law, 476 : his revenue, 236, 500, 537- Charlks II, Council under, 105, 113 : attacks the corporations, 433: his treatment of the judges, 456,458: his standing army, 474: the beginning of the royal navy 6^o INDEX under, 485 : new taxes under, 238, 509. 5 '3, 524, 528 : his use of the royal supremacy, 308, 31 1, 593, 599, 606. % Charters, to boroughs, 423-425 : of incorporation, 196 : for creating new parliamentary boroughs, 173, 208, 212: for exemption from representation in t'arliament, 206. Chartists, 226, 488, 490. Chedder, case of (1405), 262. Chester, county palatine, 331 : repre- sented in Parliament, 171. Chiltern Hundreds, The, 183. Chippenham Election Petition, 197, 274. Church, vide Table of Contents, Chap. XI. Cinque Ports, 482, 485. Circuits of itinerant justices, 364- 366. Citations, Act of (1531), 590. Civil List, vide Table of Contents, § 74 : pensions charged on, 218. Clarendon, Assize of (1166), vide Assize. — Constitutions of {1164), 564: § 3, trial of criminous clerks, 566 : § 6, use of jury, 359 : § 8, ecclesiastical appeals, 573- 574 : § 9, disputes over land be- tween lay and cleric, 29, 356 : § 11, bishops in lay trials, 155 : § 16, ordination of villans, 46. Clarendon, Earl of (Edward Hydel, arranges surrender of clerical self- taxation, 149 : opposes appro- priation of supplies, 242 : sends prisoners to the Channel islands, 440: surrendered by Charles 11, 309 : his impeachment, 105. ' Clarendon Code,' 310, 599, 606. Clergy in connection with Parlia- ment ; stay away from the (>)m- mons, 149-150 : oppose the Com- mons' claim to legislate, 246 : self-taxation in Convocation, I49> 247, 569 : given up, 309, 513. 584. ' Clericis laicos,' papal bull, 569. Clerk, case of (1460), 262. Clifton Peerage, case of the (1673), 142. Cnut, his ealdormanries, 329: liis grantsof private jurisdiction, 341 : his Huskarls, 473. Cnut's Laws, 334, 385, 388. Coalition Ministry (1784), 316. ' Coat and conduct ' money, 470. Coke, Chief Justice Sir Edward, in- terpretationof thetreasonlaws, 89 : opinion on the right to summons, 143 : on proclamations, 250, 455: denies the habeas corpus writ to a prisoner, 437 : resistance to the Crown, 455, 4'^7 : dismissed, 455-. Colonial governors disqualified for Parliament, 187. Colonies, treatment of, 526. Combination Laws, repeal of (1824), 490. Comitatus, 21, 461. CoDimendatns, case of (1616), 456, 458. Commendation, as helping the growth of the manorial system, 20 : results of, 467. Commercial treaties, 525. Commissions of array, the sheriff pricks for, 375 : levy by, 469 : as a means of taxation, 238. Common Lands, origin of rights in, legal, 54 : historical, 55. Common Law, administration of, vide Table of Contents, § § 47-48, .51-53, 5.5. Common Pleas, Court of, 367. Commons, House of, vide Table o^ Contents, Chaps. IV. and V. Commonwealth, constitutional les- sons of the, 305-307 : taxation dur- ing the, 499, 513, 524, 527, 528. Communa, grant of, to towns, 427. Commune Concilium, vide Table of Contents, §§ 19-21. Commutation of service for rent, to make free tenants, 49 : copy- holders, 50. Comprehension Bill (1668), 311, 606. Compurgators (Oath-helpers), 348, 362. Concilium Ordinarium, vide Table of Contents, § 14. Conference between Lords and Commons, 281. Confirmatio Cartarum (1297), omits tallage, 507 : § ti, forbids illegal INDEX 631 aid, 3S, 231, 497, 51S: § 7, for- bids inaletoUe, 234. Conservatores pacis, 376, 393. Consolidated Fund, 501, 526, 52S, ,545- Consols, their origin, 540. Constaljle, Lord High, Court of the, 257, 475-. Constituencies of Members of the House of Commons, vide I'able of Contents, § § 28, '29. (^' Constitution, flexible and rigid, i : conventions of the, 3 : Bacon's view of the, 304. * Consuetudines ' of William I, 288, , 555, 557, 564- Contractors disqualified for Parlia- ment, 188, 219. Controller-General, 546. Convocation, origin of, 556, 568 : clergy vote money in, 149, 247, 569, 577 : comparison with Par- liament, 558 : after the Reforma- tion, vide 7'ahle of Contents, § 88 : suppression of, 584.. Cope, case of (15S6), 266. Copley, case of (1558), 274. Copyhold, origin of, 50 : precarious tenure of, 57. Corn Laws, history of the, 58. Cornwall, Duchy of, creation of boroughs in, 173. Coroners, 376. Corrupt practices disqualify for Par- liament, 188. Corruption in Parliament, 216- 219. Cottars, 22, 47. Council, king's, vide Table of Con- tents, § § 13-17. — of Calais, of the North, of Wales, 100. — Councils, 399, 417. Counties Palatine, 100, 331 : in- cluded in Parliament, 171. County Court, modern, 400. Court of Augmentations, of Castle Chamber, of Firstfruits and Tenths, of Requests, of Stannaries, 100- 1 01 : ecclesiastical, vide Table of Contents, § 85 : Leet, manorial, 343 : of Wards and Liveries, 68, 100, 498. Creation of peers, 282. Creevy, case of (1813), 271. Criminal law, stages in the develop- ment of, 345-346. Cromwell, Oliver, 305-307. Oromwell, Thomas, 580. Crown, vide 'Table of Contents, J §9, 31. Crown Lands, 492-496. Curia Regis, 94, 120, 126, 365 : evokes cases from the local courts, "Curtesy^of England, tenure by, 140. Customary, Court, of a manor, 343. Customs, vide 'liable of Contents, § § 3.3, 77:78. Dainntaree and Turchas, case of (1710), 90. Danby, Earl of, impeachment of (1679), 105-106, 157. Danegeld, origin of, 502 : in towns, 424 : degrades the ceorl, 23, 502. Danish invasions, effect of the, 16, 285. Darnell, case of (1627), 438. Davitt, Michael, case of (1S82), 189, 272. Death duties, 531. Debates in Parliament, publication of, 269-271. Debtors, treatment of, 444-445. Declaration of Right, asserts James H's abdication and vacancy of the throne, 77. Declarations of Indulgence, 309, 311, 593-. ' De haeretico comburendo ' Statute (1401), 563. Delegates of Appeals, Court of, 585, 587, 589- Demesne, the lord's, 44 : diminished by the growth of free tenants, 49. Demise of the crown, 260. Dering, Sir E., punished for pub- lishing his speeches, 269. Despencers, accused of treason, 86, 152. Dispensing power of the Crown, 251-253, 308, 311. Disqualification for M.P.'s, vide Table of Contents, § 27. Dissenters, vide Nonconformists. Dissolution of Parliament, as a means of overcoming the opposi- tion of the House of Lords, 283 : ey. INDEX for ascertaining the opinion of tlie country, 316. Distraint of Knighthood, meaning of, 466 : under Edward I, 291, 466 : under the Tudors and Stuarts, 239, 466 : abolished by the Long Parliament, 69, 239, 467. Divine Rights of Kings, 303, 312. Domesday, evidence for, collected by a jury of villans, 46, 292, 353, 362 : evidence of commendation in, 20 : of thegns holding in par- age in, 31 : the manor in, 41 : number of bordars and cottars in, 47 : the king's estates in, 493 : the town population in, 423 : used for assessment of taxation, 503. Drawbacks on commerce, 525. Duellum, vide Battle, trial by, 424, 425- Duke, introduction of title, 143. Dunconibe, case of (1847), 262. Durham, a county palatine, 331 : representative admitted to Par- liament, 171, 215. Eadgar, his cession of Lothian, 286 : his ealdormanries, 328 : re- presentation in local courts, 325 : introduction of Benedictine rule, 551- — his Ordinance of tlie Hundred, 318, 323, 324, 392. — his Laws, 323, 324, 325, 328, 388, 420. Eadmund, his Oath of Fealty, 85, 385 : abolishes the "blood-feud, 346 : his police law, 388. Eadward the Ei.iJER, unites England, 285, 328 : accepts com- mendation of princes, 286 : his fortified burhs, 419 : founds new bishoprics, 548. Eadward the Confessor, intro- duction of foreigners, 287, ^552 : grants of private jurisdiction, 339 : first appearance of a Chancellor under, 378 : value of his ' Laws,' 387, 532 : Danegeld discontinued ^ by, 502. Ealdorman, his origin, 8, 22 : his position, 328 : in the Witan, 1 18 : representative of provincial feel- ings, 286. Earl, in Parliament, 143 : disappears from the local courts, 330. East India Company v. Skinner, 284 : a joint stock company, 523 : the New Company, 539. Ecclesiastical Councils, vide Table of Contents, § 83. — Courts, vide 'J'ablc of Contents, §85. — jurisdiction, before the Reforma- tion, 562-563 : after the Reforma- tion, 586, 588, 591. — law, before the Reformation, 560-561 : after the Reformation, 585. — Titles Bill (1 85 1), 605. Edward I, his land laws, 62-63, 69 : circumstances of his accession, 75 : formation of the Council under, 96, 243, 247, 379 : forma- tion of Parliament under,. 135- 138, 141-142, 172: his anti-feudal measures, 176, 291-293, 296, 343, 466, 469 : consolidation of justice under, 367, 369, 377, 379 : his regulation of commerce, 234, 485, 518, 522, 534: his dealings with the clergy, 149, 569. Edward II, his accession, 75 : acknowledges legislative power of Parliament, 232, 293 : claims dominion of the sea, 485 : his deposition, 82. Edward III, his accessicm, 75, 83: his Statute of Treasons, 86 : in- troduces new titles of nobility, 143 : Act in restraint of power of Council under, 98, 166 : gains . of the Commons under, 232, 234, 241, 244, 248, 255, 293, 497, 519-522 : encourages merchants, 178, 446, 535 : the navy under, 481, 4S3, 4S5 : anti-papal legis- lation under, 575, 577. Edward IV, his claim to the throne, 75 • abeyance of Parlia- ment under, 297 : follows a popular policy, 298 : his interest in commerce, 298, 483: his methods of raising mone)', 495. Edward VI, Council under, 103, 212 : additions, to the House of Commons under, 173 : repeal of statutes under, 88, 214, 249, 300. INDEX 633 Election to rarliament, principle united with representation, 130 : regulated by statute, 210 : ex- penses of, reduced, 226 : right of trying contested, 273. Electorate of Knights of the Shire, vide Table of Contents, § 28 : of burgesses, § 29. Eliot, Sir J., case of (1629), 267, 27s. 439- Elizabeth, Queen, Star Chamber under, 102 : use of proclamations by, 250 : opposition of Parliament to, 300 : theory of ecclesiastical government, 302 : use of martial law by, 476. EUenborough, Lord Chief Justice, in the Cabinet, 109, 454. Elmet or Leeds, kingdom of, 9. Enclosures, 57. Englishry, presentment of, vide Mur- drum. Enlistment in the army, 478-479. Entail established, 63, 296 : results of, 296. Entick V. Carrington, case of ( 1 765 ), 444, vide Appendix. Eorls, 21. Equity in English law, 31S : fused with common law, },%},. Escheat as a feudal incident, 40. Ethel, 17. Exceptio, introduction of Roman, into English law, 352. Exchequer, formation of the, 92 : its officials become itinerant jus- tices, 363 : becomes a Court of Common Law, 369. — of the Jews, 533. — Chamber, Court of, 370. — stop of the (1672), 537. Excise, Commissioners of, excluded from Parliament, 186 : on beer and liquors, 499, 527 : Walpole's scheme, 489, 525, 526, 528 : as part of taxation, vide Table of Contents, % 79. P'xclusion Bill, 307, 311, 313. Expulsion of members of Parliament, 272. Extradition treaties, 447. Fagot votes, 198. Fancy franchises, 229. Fealty, oath of, 20, 85, 287, 385. Fee Simple, estates in, absolute, 62 : conditional, 63. Fee Tail, estates in, 63. Fees and fines from royal preroga- tive, vide 'J'ahle of Contoils, § 73 : in payment of offices, 545. Felony, disqualifies for Parliament, 189: its legal effects, 154: in mediaeval law, 346, 349, 360. Ferrers, George, case of (1543), 262, 264. Feudal, levy, 462-467 : jurisdiction, vide Table of Contents, § 49 : dues, 497-499, 528. Feudalism, vide Table of Contents, § 4 : in England before the Nor- man Conquest, 462. Fifteenth and Tenth, 511. Fine, judicial, vide Amercements. Fine of lands, a method of barring entail, 65. Firma burgi, 198, 421 : comitatus, 332. Fitzharris, case of (1681), 165, 284. Fitzwalter peerage, case of (1669), 140. Floyd, case of (162 1), 257. Foldsoke, 48. Folkland, origin of, 17, 492. Folkmoot, 117. P'oreign policy, share of the Com- mons in, 255, 295, 304. Foreigners, restriction on the settle- ment of, in England, 446, 521- 522. Forest Courts, vide Table of Con- tents, § 54. Forfeiture, as a feudal incident, 40. ' Forinsec ' service, 34. Four neighbouring vills, their em- ployment in the jury, 361. P'ox, Charles James, attitude of, on the regency question, 84 : a minor in Parliament, 183 : the Westminster Election, 200 : at- . tacks slavery, 445 : his Libel Act (1792), 452: favours religious toleration, 609. Franchise, vide Electorate : altera- tion under Commonwealth, 307. Franchise, i.e. immunities, in boroughs, 425. Frankalmoin, tenure of, 29, 568. Franklin, case of (1731), 452. 634 INDEX Frankpledge, its origin, 389 : in- clusion of villans, 51, 389: View of> 335' 375 '■ connection of the sheriff with, SS3> 359, 37^ : diflers from the jury, 353. Franks, 5, 6. Free trade, establishment of, 526- ,527. freedom from arrest, for an M.P., 169, 261-264. — of speech, for an M.P., 170, 264-271, 302. — growth of, on a manor, 49. Freeholders, as tenants of a manor, 30 : yeomen, 53 : of forty shillings elect for the shires, 193. Freeman of a corporation, as par- liamentary elector, 19S : his rights preservedby the Reform Acts, 201. French Revolution, its effect on English Reform (1789), 222; (1830). 224. F?-eschville peerage, case of (1677), 142. Friars, 554. Frith, 384 : gild, 420. Frithborh, vide Frankpledge. Fuller, case of ( 1 607), 457. Fyrd, its history, 467-469 : organi- zation by \4ilfred, 467 : reor- ganization by Henry II, 468 : led by the sheriff, 333 : mingled with the feudal levy, 466. Fyrdwite, 467, 496. Gafol, 23, 48. General warrants, 443-444. George III, relations with his ministers, 108, 216, 316, 317 : arrangements for the regency under, 83 : promotes the inde- pendence of the judges, 459 : the royal revenue under, 501, 545 : his aversion to parliamentary reform, 222 : and to religious toleration, 604. Gesith, 21. Gilbert's Poor Law (1782), 412. Gild, Merchant, 428-429 : Craft, 406, 429-431 : Knight, 419. Gladstone, Right Hon. W. E. , re- tains office without a seat in Par- liament, 115: his Reform Bill, 227 : Ballot Act, 228 : ends the protective system, 527 : converts perpetual into terminable annui- ties, 543. Glanvill, Ranulf, on the royal pre- rogative, 78 : bishop's oath, 146. Glaiiville and Allen, cases of, 382, 457- Godden v. Hales, case of (1686), 253-254. 458, 474- Goldsmiths as bankers, 537. Good Parliament, petitions about elections, 192, 204 : denies the king's right to revoke a statute, 245 : impeaches the king's minis- ters, 163 : petitions of, 254. Goodwin and Fortescue, case of (1604), 189, 273, 277, vide Ap- pendix. Gordon, Lord George, case of (1780), 90, 477, 601. Grand Assize, vide Assize. — • J ury, vide Jury. — Sergeanty, tenure by, 29. 'Great Contract,' The (1610), 69. Grenville Act (1770), trial of dis- puted returns, 274. Grith, 384. Guardians, Poor Law, 414, 417. Habeas Corpus, writ of, 436, 478, 587 : Act of, 309, 440 : suspen- sion of, 442. Hall, Arthur, case of (1572), 272, 274. Hall-moot, 343. Ha/i/pden, John, case of (1637), 508, vide Appendix. Hansa, grant of, to towns, 4281 : London, 521 : Teutonic, 521. Hardwicke, Lord, defines discretion of Chancellor, 383 : his Marriage Act, 609, 611. Hardy, Thomas, case of (1794), 90, 461. Hare's scheme of proportional re- presentation, 229. Haxey, case of (1397), 150, 186, 265. Flearth money, 509. Henry I, trains a new class of ofificials, 93, 292, 332, 363 : dis- continues the three annual courts, 120 : forms a strong central government, 289 : deals with the forests, 371 : his use of mer- cenaries, 473 : consent to taxa- tion under, 503 : scutage under, INDEX 635 504 : his ecclesiastical policy, 564, 565, 576. Henry I, his Coronation Charter, renounces the tyrannies of Wil- liam II, 2S9 : deals with, § 2, reliefs, 36 : § 3, marriage, 39 : § 4, wardship, 38, 39 : § 8, amercements, 92, 338 : § 11, feudal taxation, 503. — his Charter to London, 423-424, — his Laws (Leges Ilenrici Primi), evidence of attendants, at local courts, 324, 353, 373 : frequency of local courts, 334 : imply the existence of an Honour, 342. Henry H, growth of primogeniture under, 33 : of marriage as feudal incident, 39 : appoints laymen to justiciarship. Si : formation of central government under, 93, 126, 290 : growth of Common law under, 93, 96, 290, 355, 368, 562 : use of popular representa- tives, 129, 292, 350, 354, 362 : reorganization of local govern- ment, 290, 332, 333, 359, 364, 375 : his charters to towns, 428 : military system under, 463, 464, 465, 468, 473 : taxation under, 465, 468, 503, 504, 510, 532 : his ecclesiastical policy, 561, 564, 566, 573- Henry IH, his accession, 75 : ar- rangements for regency under, 81, 82: Council under, 95, 98, 138, 368: the minority of, 82, 138, 290, 368, 372 : relations with the barons, 296, 495 : local govern- ment under, 390, 391, 392 : taxa- tion under, 46, 176, 466, 505, 506, 507 •• his ecclesiastical position, 568, 574- Henry IV, his title to the throne, 75, 82, 294, 567 : his Lancastrian inheritance, 331, 493 : Council under, 99 : Parliament under, 152, 185, 210, 233, 242, 278, 282. Henry V, his army, 239 : his navy, 483, 485 : Parliament under, 241, 256 : confiscates alien priories, 493 : arranges regency for his son, 82. Henry VI, regency for, 83 : Council under, 99, loi : Parliament under, 28 1 : taxation under, 241, 51 1, 520. Henry VII, his claim to the Crown, 76 : effect of his legislation, 298, 406, 474 : methods of raising money, 235, 495, 498, 520. Henry VIII, creates new treasons, 87 ; Council under, 104 : Parlia- ment under, 173, 214, 249, 299, 581 : follows a popular policy, 259, 298 : methods of raising money, 235, 498, 512 : his eccle- siastical policy, 148, 493, 575, 578, 580, 589 : leaves the Crown by will, 77, 303. Heresy, punishment of, 562-563, 594- Heriot, 35-36. Hide, unit of manorial system, 47 : basis of early taxation, 503: unit of five hides, 326, 462. High Commission Court, loi, 586- 588. High Reeve, appointment of, in place of Ealdorman, 329. Holy Orders, a disqualification for Parliament, 186. Homage, 85, 461. Honour, feudal, 342. Home Tooke, Rev. J. , case of (1794), 90, 186, 461. Household, royal, cost of, mainten- ance of, 494. Howard v. Gossett, case of (1839), 276, vide Appendix. Hue and cry for pursuit of crimi- nals, 392. ' Humble Petition and Advice,' The, 306. Hundred, vide Table of Contents, § § 47-48. Huntingdon election, case of the (1450), 205. Huskarls, 473. Immunities, clerical, 169, 565^ 566. Impeachment, cases of, 163, 164, 166: share of the Lords in, 162: of the Commons in, 257 : of com- moners, 163, 284. Impositions, 235, 523. Impressment for the army, 469, 470, 478 : for the WAxy, 484. Incidents, feudal, 35-41. Income Tax, 515, 527. 636 INDEX Indemnity, Acts of, 251, 443, 60S. Infants disqualified for Parliament, 183. Inquest of Sheriffs (1170), 332, ' Inquisitio,' 354. Instrument of Government, 305, 474. Interest, regulation of, 536 : at- tempts to reduce, of the National Debt, 542. ' Interpreter,' Dr. Cowell's, 303. ' Intrinsec ' service, 34. Investiture quarrel, 565. Ireland, union with, consequent ad- ditions to House of Commons, 172 : hereditary revenues of, 501 : Roman Catholic disabilities in, 602. Irish pension list, 218. Italian merchants in England, 534. Itinerant Justices, vide Table of Con- tents, § 52 : their rivalry with justices of peace, 393-394. James I, his relations with Parlia- ment, 214, 217, 236, 266, 273, 302, 499 : his foreign policy, 302, 598 : his religious ])olicy, 253, 303, 598 : relations with thejudges, 382, 455- ... James II, his religious policy, 311, 593 : his revenue, 238, 308, 309, 500 : his dealings with the boroughs, 433 : with the judges, 456 : with the army, 474 : his use of the dispensing power, 308 : his deposition, 82, 254. Jenkes, case of (1676), 439. Jesuits in England, 597. Jews in England, 446, 489, 532-534 : in towns, 429 : excused from the Assize of Arms, 468 : excluded from Parliament, 182 : political emancipation of, 611-612. John, King, the Curia under, 36S : his charters to towns, 428 ; his military force, 465 : his navy, 483, 484 : taxation under, 505, 507, 568 : his treatment of the Jews, 533 : his ecclesiastical policy, 574, 577. Judges, Itinerant, vide above: their dependence on the Crown, vide Tabic of Contents, § 66 : appoint- ment of, 310, 313 : interpretation of the Law of Treason by, 88 : inquire into returns to Parliament, 272 : protest against commitments by Council, 438, 455 : are re- fused a place in the Lords, 97, 162 : disqualified for Parliament, 185 : dismissed for opposition to the Crown, 456. fudicial procedure, vide Table of Contents, §§ 50-5L Jury, vide Table of Contents, § 51 : combines election and representa- tion, 129: used in assessment, 468, 503: members of Parliament not liable to serve on, 263 : in relation to the law of libel, 451 : responsibility for their verdicts abolished, 460. Justice of the Peace, vide Table of Contents, § 58 : their connection with Poor Law, 407, 411 : for the Cinque Ports, how nominated, 482. Justice-seat, Court of, 373. Justiciar, office organized, 81 : to supervise the ecclesiastical courts, 566 : superseded by the Chan- cellor, 107. Kent, a county palatine, 331. Kentish petitioners, case of the (1701), 487. Kindred, early responsibility of the, 385. King, vide Table of Contents, § § 9- 12, 31. King's Bench, Court of, 370. ' King's Friends,' The, 180, 217. Knight's Fee, 26, 462, 506 : relief paid by holders of, 36 : aid paid from, 37. Knights liospilaliers, 553 : Tem- plars, 553. Knights of the shire, their employ- ment in local government, 129 : in Parliament, their numbers, 171 : qualifications, 176: position in Parliament, 177 : to reside in the shire (1413), 205 : attack the clerg>', 563. Labourers, effect of enclosures on, 59 : Statute of, 405. Ltenland, 19. Lake v. King, case of, 271. INDEX 637 Lancaster, Duchy of, 331, 493, 502: Chancellor of, 115. Land and Stock lease, 52. Land Bank, 539. Land Laws, vide Table of Contents, §7. Landrica, 340. Land Tax, 514. Lark, case of (1429), 262. Lathes in Kent, 320. Law Lords in Parliament, 16S. Lawyers disqualified for Parliament {1372, 1404), 185. Leach v. Money, case of (1765), 444, vide Appendix. Leet, Court, of a manor, 343. Legacy duty, 531. Legates, councils of, 557 : papal, 549. 575-576. Legislation by the Witan, 118: by the Commune Concilium, 124 : share of the Commons in, 232, 243-246, 278. Legislature, formation of a national, vide I'able of Contents, § 40 : rela- tions of, with the executive, vide Table of Contents, § § 41, 43, 46. Leighton, case of (1630), 450. Letters, right of opening private, 449- Letters patent, creation of peers by. Libel, law of, judicial interpretation of, 451-452, 459 : parliamentary papers amenable to, 271. Liberi homines, tenure of, 30. Liberty of speech, vide 'Table of Contents, § § 37, 65. Liberty of the subject, generally, vide Table of Contents, Chap. IX : under the Tudors, 299 : under the later Stuarts, 309. Licences to trade, 529. Licensing Act (1662-1695), 450. Lilburnc, case of (1638), 450. Livery and maintenance, 57. Loans, used as means of bribery, 219 : for carrying on the govern- ment, vide Table of Contents, § 80. Local Government Board, 187. London, Henry I's charter to, 423- 424 : early condition of, 421 : re- presentation of, in Parliament, 172. Long, Thomas, case of (157 1), 180. Long Parliament, abolishes distraint of knighthood, 69 : abolishes the Star Chamber, 103, 439 : and the High Commission, 588 : con- demns commissions of array, 470, 478, 481 : deals with tonnage and poundage, 238. Lord- Lieutenant, origin of, 397, 470: recommends justices of peace, 394: dismissed by James H, 474. Lords, House of, tv'i/t' I'able of Coti- tents, % §21-24, 39. Lords Appellant, 97, 153, 163, 294. Lords Ordainers, 98, 259. Lotteries, used as a means of bribery, 219 : as part of the National Debt, 541. Loughborough, Lord, claims to re- main in the Cabinet, 109. Lunatics disqualified for Parliament, 183. Mad Parliament (1258), 132, 574. MagmaCarta(i2I5), its real impor tance, 127 : § 2, fines and reliefs 37 : § § 4, 5, wardship, 39, 372 473 = § § 12, 15, scutage and aids 37, 38, 497, 505. 507- § 14, de fines Commune Concilium, 95 121, 123, 279: § 17, fixes com mon pleas at Westminster, 368 § 18, directs the taking of assizes 130 : § 20, recognizes the pro perty of villans, 46, 338 : § 21 mitigates arbitrary fines, 338 § 24, sheriff not to hold pleas of th'e crown, 376 : § 34, use of writ Praecipe, 355 : § 56, free grant of writ, 436 : § 39, forbids false arrest or imprisonment, 151, 438 : § 40, forbids sale of justice, 256, 352 : § 41, maletolte for- bidden, 518: §48, abolishes evil customs of forest, 372. — second reissue of (1217): § 13, jury in possessory assizes, 130 : § 39, restraint of alienation, 62 : § 42, meeting of shire court, 334, 390 : § 44, taking of scutage, 506. Magnum Concilium, 209. Maintenance, livery and, 57. Maletolte, 234, 518. Mallus, court of, among the Franks, 319- 638 INDEX V Manor, indc Table of Contents, § 5 : its relation to the Vill, 401. Manorial jurisdiction, vide Table of Contents, § 49. Mansfield, Lord, denies the House of Commons to be a court of record, 277 : his decision on general warrants, 444 : on negro slavery, 445 : interpretation of libel, 451-452 : on the use of the military in a riot, 477. Manucaptors, 196. Mark system, 11, 12. Marriage as a feudal incident, 39. Marshall, Earl, 98, 151, 254, 257, 475- Martial law, 475-476. Martin, case of (1587), 262. Mary I, Queen, repeals the treasons of Edward VI's law, 88 : her relations with Parliament, 173, 300 : uses the royal supremacy, 586. Mass-thegn, 550. Masters in Chancer)- draw up writs, 351- Mayor granted to boroughs, 427, 432. Meetings, public, 4S9. Mercantile system, 525. Mercenaries, vide Table of Contents, § 69 : hired by scutage, 465. Merchant Adventurers, 523. Merchants form almost a separate estate, 178 : position of foreign, in England, 521, 534 : obtain Carta Mercatoria, 518, 521 : or- g^Tiizatron of English, 522, 535. Merchet, 48, 51. Mercia, formation into shires, 327. Mesne, lord, 25 : tenant, 204. Alesseiiger, case of (1668), 89. Militia, 470-471. Miller, case of (1771), 269, 452, 461. Ministerial responsibility, 304, 309, 314- Minors elected to Parliament, 183. Mist, case of (172 1), 257. Mitchell, John, case of (1875), 1S9, 272. Model Parliament (1295), 136, 158. Monasteries, suppression of the, 493, 5S0. Monks, introduction of orders into E^ngland, 551. Monmouth, county of, admitted to Parliament, 171. Monopolies, 529. Mortmain Laws, history of, 69 : - — fevaded by Uses, 67 : applied to lay corporations, 427. Moveables, Tax on, 510. Mund, 384, 420. Municipal Corporations Acts (1835, 1882), 433. Murdrum, 51, 390, 424. Murray, Hon. Alex. , case of ( 1 75 1 ), 277. Mutiny Act, militia liable to, 471 : provides for the discipline of the army, 475, 477. ' Nabobs,' Indian, in the House of Commons, 180. National Debt, 539-544. Nationality, growth of the spirit of, in England, 297. Naturalization Act {1844, 1870), 446-447. Navigation Acts, 483. Navy, vide Table of Contents, § 70. Nealc, case of (1593), 262. Newark, last case of enfranchisement by royal charter, 215. Newspapers, stamp duty on, 450. Nonconformists, 311: early treat- ment of, 595 : disabilities of, 605-606 : removal of disabilities of, 606-610. Norfolk, county of, case of (15S6), 273- Nowell, Alex., case of (1553), 150, 186, 272. Oaths,requiredof M.P.'s, 181: regu- lated by Statute, 1S2. — of oath-helpers, i.e. Compur- gators, 348, 353. Occasional Conformity Act (171 1), 607. C Donovan Rossa, case of (1870), 189, 272. Oferhyrnes, 385, 388. 496. Offices, used as a means of bribery to M.P.'s, 217: disqualification of holders for seat in Parliament, 186-187. Officials in ecclesiastical courts, 559. INDEX 639 Onslow, case of (1680), 273. Ordainers, Lords, 98, 259. Ordeal, 51, 347, 361. Ordinance of 131 1, 247, 495. Ordnance Board, 479-480. Outlawry, 40, 345. Overseers of the Poor, 408, 410, 411, 413. Oxford, Council of (1213), 130. ' Packing ' of Parliament, 211. Pagus, 319. Palatinates, 100, 331 : included in Parliament, 1 7 1. Pallium, 571. Papacy, its claim on the Elnglish nation, 576-577 : its interference with the English Church, z'ide Table of Contents, § 87. Pardon, royal right of, 252, 309. Parish, organization of the, 402 : number in mediaeval England, 549 ; its relations to the Vill, 402 : its chargeability for its poor, 429. — Councils, 417. Parliament, vide Table of Contents, Chaps. IV and V. Parry, case of (1585), 272, 274. rat}', case of (1705), 277, vide Ap- pendix. Paymaster, of the forces, 545 : -General, 546. Payment Lf M. P. 's, 203: in return for votes in Parliament, 216. Peachatn, Edmund, case of (1615), 89, 457- Peasant Revolt, 52, 509. Peculiars in the Church, 559. Peel, Sir Robert, his Act for regu- lating the trial of contested elec- tions, 274 : succeeds Lord Mel- bourne, 317 : his financial policy, 527 : revives the IncomeTax, 516. Peerage Bill (1719), 160. — life, 144 : growth of the idea of, 150 : increase in numbers of, 158 : Scotch, 156 : Irish, 156. Peers disqualified for the House of Commons, 184. Peine forte et dure, 361, 362. Pells, Clerk of the, 545. Peltier, Jean, case of (1803), 447. Penry, Henry, case of (1593), 450. ' Pensionary ' Parliament, 260. Pension List, as part of the Civil List, 502. Pensions to M.P.'s, 218. Peter's Pence, 509, 576. Petition of the Barons (1258) : § 10, mortmain, 69 : § 17, frankpledge, 390: §21, murdrum, 390: § 27, conditional gifts, 63 : § 29, three- fold gradation of courts, 342. — of Right, forbids arbitrary taxa- tion, 237 : and arbitrary imprison- ment, 439 : condemns martial law, 476 : judges consulted on its legality, 455. Petitions, earliest form of initiating legislation by the Commons, 244 : as a means of interfering with the executive, 254 : prohibition of tumultuous, 307, 487 : history of popular right of, 486-488. Petty Sessions, 398. Pitt, William, Earl of Chatham, brought into office, 109 : condemns corruption, 220 : his suggestions for reform of Parliament, 221 : his useofproclamations, 251 : protests against the exclusion of strangers from the Lords, 268. Pitt, William, the younger, and the regency, S3-84 : raises money by sealed tenders, 188 : his conduct in the Westminster election, 200 : condemns corruption, 220 : his schemes of parliamentary reform, 222 : his financial policy, 526, 529, 543 : fixes the land tax, 515. Place Bills, 187, 217. Pleas of the Crown, 337, 340, 376, 377, 393. Police, early system of, vide Table of Contents, § 57 : sheriffs power in, 333> 376. Poll at elections, 200, 226. — tax, 508. Poor Laws, 60, 404-417. Pope and the English Church, vide Table of Contents, § 86. Post Office, as part of hereditary revenue of the Crown, 499, 501. Pot-wallers of Taunton have the parliamentary vote, 198. ' Po}Tiings ' Act, 100. ' Praemunientes' clause in writs of summons, 149, 569. Praepositus, a manorial reeve, 44. 640 INDEX Precaiiae or boon-days, 47. Precept, writ of the sherift" to boroughs, 207. Prerogative, royal, 'jide liable of Contents, § § 10, 46. Press, influence of the, in favour of liberty, 220 : censorship of the, 310, 449: freedom of the, in modern times, 453. Pridcaii.x v. J/t?;;7'.v, case of (1702), 273, 7:ide Appendix. Prime Minister, 108, no, in. Primogeniture, introduction of, 31. Privileges, of the Lords, vide Table of Contents, § 24 : of the Com- mons, vide Table of Contents, § 37. Privy Council, 99, 103, 1 10. Proclamations, lOO, 249-251, 455. Prohibitions to ecclesiastical courts, 557, 586, 587. Proportional representation, 229. Provisions of Oxford (1258), 132, 351- — of Westminster (1259), 133: § 12, wardship, 39 : §14, mortmain, 69 : § 16, appeals, 342 : § 17, attend- ance at local courts, 390 : § 21, murdrum fine, 390. — papal, 575. Prynne, William, case of (1633), 450- Publication of debates, 269. Puritans, change in their attitude, 3n : toleration of, 494-495. Purveyance, meaning of, 496 : its connection with Customs, 517 : the sheriff concerned with, 377 : its abolition, 498, 528. Quakers, excluded from Parliament, 182 : emancipation of, 488, 610. Quarter Sessions, 393, 394, 399,407, 434- Quota of military service, 465, 469. Uadmanni, 22. Kanulf Flambard, 92, 289. Rapes in Sussex, 320. Rates, Lord Salisbury's Book of, 236 : Book of, in 1660, 524 : Church, 404. Keadv. Bishop of Lincoln, case of (1890-I), 588, Recognitio, 354. Record, local courts of, 400 : House of Commons as a court of, 277. Recorder disqualified for Parliament, 187 : in boroughs, 434. Recovery, method of common, 65, Recusants, religious, treatment of, 597- . . * Redress of grievances, secured by Commons before supply, vide Table of Contents, § 33. Reform, ^(■/^/i832, 172, 174, 188, 193' I94> 201, 225, 283 : Act of 1S67, 132, 172, 174, 193, 194, 201, 227, 260: Act of I'i'&a,, I'J'Z, 174, 194, 201, 228. — Associations to obtain, 221, 489. — Parliamentary, vide Table of Con- tetits, § 32. Reformation, effects of the, vide Table o^Contents, § § 87-90. Regard or visitation of the forests, 373- Regencies, vide Table of Contents, Registration, as a measure of police, 387-389. Regulated Companies, 523. Relief, feudal, 35 : outdoor, in Poor Law, 416. Remainder in land laws, 70. Representation used for compilation of Domesday, 292 : extended to civil and criminal justice and to financial assessments, 292 : con- nected with election, 129: in local courts, 325. Resignation of a seat in Parliament, 1S3. Resumption of royal demesne, 495. Revenue of the Crown, vide Table of Contents, Chap. X. — officers, their importance as parliamentary electors, 199. Revocation of a statute, royal power of, 245. Revolution of 1399, 244: of 1688, 312 : effect on the Crown, 79. Richard \, his ransom, 126, 510, 568 : h?s military force, 465, 473 : his measures fijr a navy, 484, 485: favours the Jews, 533 : his charters to towns, 428. Richard H, his accession, 75 : the Council under, 99 : his relations INDEX 641 with Pnrliament, 211, 243, 282, 295, 495 : his attempt at despot- ism, 294, 564 : deposition, 82, .249, 257. Ridings or Trithings, 321. Riot Act, 90 : duty of J.P.'s in con- # nection with the, 397. Rockingham, Marquis of, no, 187, 200, 217, 501. Rolle, John, case of (1629), 237. Roman Britain, 4-14, 418. — Cathohcs, peers excluded from ParHament, 160, 182, 597, 599: clergy disqualified for Parlia- ment, 186: early treatment of, 596-600 : emancipation of, 600- 605. — Law, effect of, on royal pre- rogative, 78 : resorted to by Eng- lish judges, 351 : forms the foun- dation of equity, 381. ' Rotten ' boroughs, 180, 208, 2J2. Russell-, Lord John, a minor in Parliament, 183 : his Reform Bills, 223-227. Russell, William, Lord, impeach- meiit of (1683), 310, 460. Sacramental Test, first applied (1606), 598: abolished, 609. St. Albans, Council of (121 3), 130. St. Asaph, Dean of, case of (1799), 452. Sake and Soke, 339, 425. Saladin Tithe, use of a jury of assessment in the, 363, 510, 533, 577 '■ share of the Jews in, 533. Salisbury, Oath of (1086), 85, 121, 463, 464. Sandys, Sir Edwin, case of (1621), 266. Savoy Conference, 311. Saxons, 5. Schism Act (1713), 607. Scot and lot, payment of, as quali- fication for a parliamentary vote, 198 : Frenchmen at, in English towns, 423 : grant of freedom from, to towns, 424. Scotch pension list, 219, 501, 502. Scotland, union with, consequent additions to the House of Com- mons, 172 : hereditary revenues of, 501, 502. Scutage, 27, 289, 464, 465, 504- 506. Secretaries of State, their origin and history, 104, 1 14: become M. P. 's, ^ 213. Secretary at War, 114, 479: of State for War, 1 14, 480. Seisin, meaning of, 354 : primer, 37. Select Vestries in connection with the Poor Law, 414. Seneschal, manorial steward, 44. Septennial Act (1716), 260, 315. Sergeanly, tenure by, 28. Settlement, laws of, in relation to poor relief, 409. — strict or family, in land laws, 70. Seven bishops, case of the (1688), 254, vide Appendix. Sheriff, official of the Crown, 290, 332, 364 : his Tourn, 335 : his power limited, 292, 375 : excluded from Parliament, 185 : influence on Parliament, vide Table of Contents, § 30 : influence in the boroughs, 426, 433. Ship-money, judges consulted on its legality, 455 : its levy, 480. Shire, origin of, vide Table of Con- tents, § 47 : its court, vide Table of Contents, § 48 : representation in Parliament, vide Table of Contents, Chap. IV. Shirley, Sir Thomas, case of (1604), 262, vide Appendix. Shirley V. Fagg, case of (1675), 167, 283, 382. Shropshire, a county palatine, 331. Sidney, Algernon, case of (1683), 89, 310, 460. Simon de Montfort and represen- , tation, 134. Sinking Fund, 543. Six Acts (1819), 490. Skinner v. the East India Company, case of (1668), 167, 284. Slavery, negro, 445.- Slaves, 24. Smalley, case of (1575), 262. Smith O'Brien, case of (1849), 189, 272. Socage, tenants in, 30 : wardship in case of, 39 : free and bond, 30 : try to escape representation in Parliament in Kent, 204. T 642 INDEX Sokemen, 23, 30. Soldier, legal position of, 477. Solicitor-General, 115. Somers, Lord Chancellor, impeach- ment of ( 1 701), 106. Soinmersett, James, case of (177O) 445- South Sea Company, 539. Speaker of House of Commons, demands privileges, 261, 263, 265 : nominee of the Crown under the Tudors, 213 : is to report grants of taxation to the king, 279. ' Speenhamland Act of Parliament, 411. Spies, use of, 448. Spiritualities of the Church, taxa- tion of, 568. Stamp duties, 450, 530. Staple, merchants of the, 522. Star Chamber, its origin, loi : en- forces proclamations, 249 : con- trols freedom of opinion, 447- 448 : punishes judges, 456 : intimidates juries, 460: abolished, 439- Statute, meaning of, 248. — of Appeals (1533), 582, 585. 590 : Apprenticeship, 395 : Arti- culi Cleri (1316), 564: Circum- - specie Agatis (1285), 564: De haeretico comburerido, 563 : Fines (1489), 66, 298: Gloucester (1278), 342, 377, 436 : Labourers {1349), 405 : Liveries (1504), 298: Marlborough (1268), 66, 375: 3Ierton (1236), 55, 375 : North- ampton (1328), 252 : Praemunire (1353). 564, 574: Proclamations (1539), 249, 300: Provisors (1351), 564, 575: Rhuddliin (1284), 292: Royal Succession (1534), 76: Staples (1353), 178, 522 : Supremacy (i535). 87, 582, 589: (1559), 182, 586, 592, 5,96, 599: Toleration (1689), 606: Treasons (1352), 8'6 : Uniff)rniity, 586, 606: Uses (1536), 68, 381 : Westmioster I (1275), 361, 497: Westminster II (L)e Donis Cutv- ditionalibus, 1285), 55, 63, 70, 291, 352, 436: Westminster III (Quia Emptores, 1290), 62, 136, 244, 291 : Wills (1540), 68, 381 : —Winchester (1285), 375, 392, 469, 470. Steward, Lord High, jurisdiction of, protested against, 254, 257. Stipendiary Magistrate, disqualified for Parliament, 187 : in boroughs, 434- • Stockdale v. Hansard, case of (1839), 271, 275, vide Appendix. Storie, John, case of (1548), 274. Strickland, case of (157 1 ), 266, Strode, Richard, case of {1512), 265. Subinfeudation, 61. Subsidy, as a direct tax, 512 : as an indirect tax, 519. Succession duty, 531. ' Suit of mill,' 48. Suitors of local courts, 324, 373. Supremacy, Oath of, 182 : royal, 564, 589-593. Suretyship, 385-388. Suspending power of the Crown, 253. 313- Swainmote, Court of, 372. Tacitus, mentions national assembly, 73, 1 16 : his account of the German tribes, 319. ' Tacking ' bills, 280. Tallage, 48, 423, 504, 507. Taltariim, case of (1473), 65. Taxation, various forms of, vide Table of Contents, § § 75-79 : by the Witan, 118: by the Commune Concilium, 124 : control of the Commons over, 231-239, 278. Team, 425. Tellers of the Exchequer, 545. Temple, Sir W., his scheme for the Privy Council, 105. Tenm.annetale, 387. Tenth and Fifteenth, a mode of taxa- tion, 511, Tenths, ecclesiastical, 577, Tenure in chief, 24. Test Act (1673), 311, 599, 609. Thegns, origin of, 21 : twelve senior, in local courts, 325 ; form the comitatus, 461. Theodore, Archbishop, his organiza- tion of the Church, 327, 555 : in- crease of the episcopate, 548 : did not divide England into parishes, 549- Theows, 21. INDEX 643 Thomas v. Sorrell, case of (1674), 252. Thorpe, Thomas, case of {1453), 26J, 264, 265. Thurlow, Lord Chancellor, 109. Thwertutnay, 347, 352, 35S. Xithes, 549, 588. Tithing, 388. Tithing-penny, 48. Toleration, religious, vide Table oj Contents, % 92. Toll, 425. Tooke, Rev. J. Home, in connection with disqualification of clergy for Parliament, 186. Tonnage and poundage, origin of, 518, 520: appropriated to the navy, 241 : granted for life, 235 : refused to Charles I, 236. Tourn or Turn, sheriffs, its origin, 335 : its procedure, 360 : connection with the frankpledge, 51 : use of jury in, 336, 359 : exemptions granted from, 375, 389 : limita- tion of, 389. Township, vide Vill. Transubstantiation, declarations against, required of M.P.'s, 182. Treason, vide Table of Contents, § 12. Treasurer, Lord High, history of office, 112: member of Star Chamber, lOi : becomes chief minister, 107. Trespass, in mediaeval law, 346. Trevor, Sir John, case of (1694), 272. Triennial Acts, 259, 307, 315. Trinoda Necessitas, 18, 341. Trusts, 68. Tudors, their means of influence over Parliament, 211-214: position of the executive and legislature under, 299-302. Tun, vide Vill. Tunesman, 23. Udal, case of (159 1), 449. Unconstitutional, meaning of, 2. ' Undertakers' (1614), 215. Uniformity, Acts of, 586, 596, 606. Unions, Poor Law, 414, 415. Unitarians, emancipation of, 611. Universities, represented in Parlia- ment, 174 : religious tests required by, 608. ' Unlearned' Parliament (1404), 185. Uses, 66. Usury, mediaeval opinion of, 533, 536. Vagrants, mediaeval regulations con- cerning, 391 : early legislation against, 405. Valetti or Esquires, in Parliament, 176. Verderers in forest courts, 373. Vestry, its origin, 403. Veto of the Crown, why not used now, 3 : used by William HI, 315 : last use of, 315. Vill, vide Table of Contents, § 59 : the unit of settlement of the Eng- lish tribes, 321 : its relation to a burh, 422. Villa, Roman, 8. Village communities, 1 1, 16,402. Villans, vide Table of Contents, § 5 : in boroughs, 423-424. Volunteer force, modern, rise of, 472. ' Wager,' of law, 348 : of battle, 350. Wages, of M.P.'s, 203 : of labour, settled by J.P.'s, 394. Wales, representatives of, admitted to Parliament, 171. Walpole, Sir Robert, 108, 109 : defeats Peerage Bill, 161 ; and the Chippenham election, 197 : his expulsion from the Commons, 272 : his free trade policy, 524 : his Excise scheme, 489, 525, 526, 528 : his financial schemes, 542, 543- Wapentakes, 321, 325. Wards, Court of, 68, 498. Wardship, 38. Warrants, general, 443. Warranty, employment of, to break entail, 64. Warren Hastings, case of (1788), 166. JVason V. IValter, case of (1868), 270. Watch and Ward, 391. Week-work in the manorial system. 644 INDEX Wensleydale,' Lord, case of (1856), 145- Wentworth, Peter, case of (1576, 1587, 1593). 266, 274. Wergild, 418. Whehk, case of (1771), 269. Wilkes, John, case of (1763, 1768), 263, 269, 272, 443, 477, 489, Tide Appendix : his scheme of parlia- mentary reform, 221. William I, his claim to the throne, 74 : introduces duellum, 350 murdrum, 390 : forest law, 371 justiciarship, 81 : palatinates, 331 his method of government, 287 his Curia, 91, 120 : his military arrangements, 26, 462, 473 : pro- vision for a navy, 482 : his eccle- siastical policy, 288, 552, 555, 558, 559, 560, 564, 576. William II, secures the crown, 74: the justiciarship under, 81 : his feudal tyranny, 289 : his dealings with the fyrd, 464, 468. William III, offer of the throne to, 77, 82 : cal;inet government and, 106, 314, 316 : the royal preroga- tive under, 315 : his supporters, 538 : his religious positiort, 584, 599. 607. of right, entry, firmae, 355 : (juo warranto, Wite, 346. Witenagemot, I17-I19. Woodfall, case of (1770), 452. Woodmote, Court of, 372. Woods and Forests, Commissioners of, disqualified for Parliament, 187: help in collection of the revenue, 544- Workhouse test in poor relief, 411- .. Writs, judicial, 351 ; praecipe, ejectio supersedeas, 262 : 291? 343: subpoena, 380: man- damus, certiorari, prohibition, 401 : de odio et atia, de homine re- plegiando, habeas corpus, main- prize, 436. — of summons to Parliament, 278 : for election to Parliament, 195, 204, 207, 210, 271. Yeomanry, 472. Yeomen, their importance and his- tory, 53- Yonge, Thomas, of Bristol, case of (1455), 177, 265. Yorkshire, freeholders of, petition of, miNTED AT THE EDINBURGH I'RESS, Q AM) H VOUNG STREET. C- fn UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. SWIG 7. A mmi NOV 21 :jt> "^^O .^r:i 1996 Form L9-116m-8.'62(D1237s8)444 UWJViJiKoi LOS ATJGELiib J I O', Aiigules L 007 490 221 4 j^y ■•■•).,-L'y igv'^\ ■?*:-■■ jt . .1 UC SOUTHERN REGIONAL LIBRARY FACILITY AA 001 276 761 2 '.t