Part 2 — Part II. Essays Of Representative Government In England, From The Conquest Till The Reign Of The Tudors. (continued 6)

Besides, when the right of enquiry is wanting, its absence is supplied in the same way as that of the right of initiative by the right of petition. As it is impossible to undertake a serious and complete investigation of any particular kind of abuse which appears to have introduced itself into the government, special complaints are suggested and multiplied. Now, the right of petition is no more competent to supply the place of the right of enquiry than that of the right of initiative. The revelation of abuses or grievances which it occasions is, by the very nature of things, full of confusion and error; matters are seldom presented without prejudice and with generality. And yet, from the very fact that there are no means of going into the details, and examining them in all their bearings, men are involuntarily led to put confidence in these complaints. Never were the demands presented by the House of Commons itself for the redress of grievances so numerous and violent as in those times when it was allowed to address them to the king only, and was permitted neither to have them thoroughly investigated by its own members, nor to sum them up in a body of facts accompanied by satisfactory proofs.

Necessity For The Completeness Of Representative Government.

Finally, when the representative system of government is complete, and provided with all the rights and all the means of action which it needs in order to accomplish its ends, the right of petition is nothing but the right of calling the attention of the Houses of Parliament, by means of one of their members, to any particular question, or act of the governing power. When once this first provocation has taken place by way of petition, the petition has attained its object; nothing more is necessary but a discussion and resolution of the House itself, which takes place according to the ordinary formalities, as if it had originated within the assembly itself, and independently of all relations with the external world. Thus the exercise of a right which should belong to all citizens is reconciled with the dignity of the public power of the nation, and with the maturity befitting their acts. Thus all grievances may solicit redress, all desires may be expressed, without giving rise to any disorder, any precipitation, or any subversion of the procedure of the great deliberative bodies. When, on the contrary, these deliberative bodies themselves are deprived of the rights and means of action which are necessary to them for the fulfilment of their destination, the right of petition becomes an irregular and often violent means by which the public and the legislative chambers endeavour to supply their deficiencies. And then this right, by all the practices to which it lends itself, and by the vicious mode of deliberation which it entails, creates, in its turn, new disorders which men undertake to remedy by imposing upon the right itself restrictions or trammels which would be completely useless if the legislative chambers were invested with all the means of action which are their due. Political liberty has this in common with science generally; it is most dangerous when it is incomplete. The history of the British Parliament proves this at every step.

Lecture XXII.

Condition of the Parliament under Edward III. Progress of the power of the Commons. Their resistance to the king. Regularity of the convocation of Parliament. Measures taken for the security of its deliberations. Division of the Parliament into two Houses. Speaker of the House of Commons. Firmness of the House of Commons in maintaining its right to grant taxes. Accounts given by the government of the collection of the taxes. Appropriation of the funds granted by Parliament. Parliamentary legislation. Difference between statutes and ordinances.

Reign Of Edward III.

Hitherto we have only met with political struggles between the king and his barons, or between opposite aristocratic factions; the Commons have hitherto appeared only in a second rank; they exercised as yet hardly any direct influence over general affairs, over the government properly so called; or if they occasionally interfered in the administration of the country, it was merely as the auxiliary or the instrument of some particular faction.

The reign of Edward III. presents a different aspect; the conflict between the king and his barons has ceased, and all the great aristocracy seems to be grouped around the throne; but at the same time, the Commons have formed themselves into a body, distinct and powerful in itself. They do not aspire to snatch the supreme power from the hands of the king and the barons; they would not have strength enough to do so, nor do they entertain any thought of it; but they resist every encroachment upon those rights which they are beginning to know and to appreciate; they have acquired a consciousness of their own importance, and know that all public affairs properly fall under their cognizance. Finally, either by their petitions, or by their debates in reference to taxation, they are daily obtaining a larger share in the government, exercise control over affairs which, fifty years before, they never heard mentioned, and become, in a word, an integral and almost indispensable part of the great national council, and of the entire political machine.

Influence Of The Commons.

Thus, whereas hitherto the political aspect of England has been the conflict of the great barons with the king; from the reign of Edward III., the resistance of the Commons to the king's government, generally formed and sustained by the barons, becomes the great fact of the history. It is not unintentionally that I here employ the words conflict and resistance. In the first period, in fact, the barons struggled, not only to defend their rights, but to invade the supreme power, and to impose their own government upon the king. This conflict was consequently nothing but a permanent civil war. But during the second period, this was no longer the case; we hear of no revolts, and of no civil wars: under Edward III., at least, the Commons do not arm to attack the government with force; but they oppose to it a political resistance, they constantly protest against the abuses and arbitrariness of the central power. Instead of directing their attacks against the king himself, they lay all blame upon his ministers, and begin to assert and popularize the principles of parliamentary responsibility. Finally, they separate completely from the great barons, act on their own account, and become the true depositaries of the pledges of public liberties.

This was a great revolution, and it prepared the way for all others. The more minutely we examine into the events of the reign of Edward III., the more proofs shall we discover of this important change. I shall content myself with giving a rapid summary of these proofs by recapitulating the general facts which characterize this reign.

The first of these facts is the regularity, previously unexampled, with which the Parliament was convoked. A measure was adopted for this purpose in 1312, during the reign of Edward II., by the Lords Ordainers. Subsequently we meet with two statutes relative to the convocation of this assembly, one of which was passed in 1331, and the other in 1362. Finally, in 1377, the last year of the reign of Edward III., the Commons themselves demanded by petition that the sessions of Parliament should take place regularly every year. It is curious to compare this petition with the requests addressed to the king, under previous reigns, by the members of the House of Commons, to be exempted from serving in Parliament: they had now begun to feel that their mission was not a burden, but a right.

Parliaments Of Edward III.

During the reign of Edward III., we may enumerate forty-eight sessions of Parliament, which makes nearly one session in each year.

Nor did the Parliament merely provide for the regularity of its convocation; it took measures, at the same time, to ensure the security of its deliberations. In 1332, a royal proclamation forbade all persons to wear coats of mail, or to carry any other offensive or defensive arms, in those towns in which the Parliament was sitting: it also prohibited all games and diversions which might disturb the deliberations of the assembly. The frequent recurrence of proclamations of this kind announces the formation of a regular assembly.

It is also during the reign of Edward III., in 1313, that we hear for the first time of the Parliament being divided into two Houses. According to historical documents of that year, the prelates, counts and barons, on the one hand, and the representatives of the counties and boroughs, on the other, sat at Westminster, the former in the White Chamber, and the latter in the Painted Chamber; and deliberated thus upon the question of peace with France.

Finally, it is also at the end of this reign, in 1377, that the rolls of Parliament first make mention of the Speaker of the House of Commons; Sir Thomas Hungerford is the first person upon whom this title was conferred. Previously, the House used to select one of its members whenever it was necessary to speak in its name, either to the king, or in the full Parliament: and it was probably in 1377, that it began to appoint its Speaker for the whole session, and at its commencement.

Prorogations Of Parliament.

It has been asserted that, during this reign and in earlier times, every session of Parliament involved a fresh election; and that the right of proroguing the existing Parliament to a new session did not appertain to the king. This is an error. It was necessary that a session of Parliament should take place in each year, but not an election. The following fact proves this. The Parliament held under Edward I. in 1300, resumed its session in 1301. The writs summon the deputies of the previous year, except in cases in which a new election was necessary on account of death or absolute inability to serve. In 1305, the king prorogued Parliament on the 21st of March, and allowed the deputies to return home, "Issint qu'ils reveignent prestement et sanz délai, quele houre qu'ils soient autrefois remandez."—"On condition that they should return readily and without delay, at such time as they might be previously recalled." In 1312, during the reign of Edward II., the Parliament separated after having sat two months, and on the same day the king addressed writs to the sheriffs, ordering them to send "the same knights and burgesses—eosdem milites et cives," to Westminster on the 2nd of November following, "to the same Parliament which we have thought should be continued there—ad idem Parliamentum quod ibidem duximus continuandum." This Parliament thus prorogued actually met, and sat from the 2nd of November to the 18th of December, after which it was dissolved. In 1329, during the reign of Edward III., the Parliament which sat at Salisbury, from the 15th to the 31st of October, was adjourned to Westminster, where it held a second session, from the 10th to the 22nd of February, 1330. We meet with similar instances in 1333 and 1372. The Parliaments were, therefore, not elected annually, and the right of prorogation was in full vigour.

Thus was developed and regulated the internal constitution of the Parliament: thus, instead of being merely an accidental meeting, limited to the accomplishment of a single object, it gradually assumed the consistency of a political assembly of periodical obligation.

Voting Of Taxes.

A second general fact, which serves to support the views which I have advanced, is the voting of taxes. There is, perhaps no reign which presents so many instances of arbitrary and illegal imposts as that of Edward III., and yet there is not one which contributed more powerfully to secure the triumph of the principle that taxes are legitimate only when they are freely granted. This principle was incessantly lost sight of practically by the king, who was pressed by necessities, created partly by his wars, and partly by the bad administration of his revenues. His whole reign was spent in efforts to regain, under forms more or less indirect, the right of taxing his subjects at his pleasure; but the Commons, on their side, never ceased to protest against these efforts, sometimes attaching the revocation of an arbitrary tax to the concession of a legal subsidy, and sometimes by endeavouring to introduce the principle of the necessity of consent into all those ways by which the king attempted to elude it. Thanks to their perseverance, the schemes of power were, if not always frustrated, at least always unmasked, and thereby rendered impotent for the future.

Instances of this conflict abound in the Parliaments held in the years 1333, 1340, 1347, 1348, and 1349, which are in general filled only with complaints of the Commons, demanding either the abolition or the diminution of unjust and illegal taxes, which had been imposed without their consent. To all these demands the king replied, sometimes by a formal refusal, sometimes by reference to the consent which had been granted him by the Lords, and sometimes by an assurance that the tax should not be levied for any length of time; but if the Commons threatened to refuse him new subsidies, he felt himself compelled to meet these demands by some new concessions.

Nor was it merely by keeping a firm hand upon the voting of taxes that the House of Commons maintained its rights; it also extended them beyond the concession of subsidies on two important occasions. In 1340, the Parliament, suspecting that a portion of the subsidies voted by it had not found its way into the royal exchequer, appointed certain persons to receive the accounts of the tax-collectors, and required them to give security for the payment of all that they received. This is the first instance of any account whatever being given to Parliament with regard to taxes; it began by desiring to make sure of the fidelity of the receipts, and thus took a first step towards asserting its rights to receive an account of the employment of the funds, that is to say, of their expenditure. In 1354, we perceive the dawn of another parliamentary right, that of the appropriation of the public funds. The Parliament, when granting a tax upon wool, added to its vote the condition that the money derived from this subsidy should be devoted to the expenses of the war then waging, and not to any other purpose.

Share In The Legislation.

After all, it is not to be wondered at that the king and his Parliament were incessantly at variance with regard to subsidies, and mutually occasioned each other continual miscounts. There was then no means of estimating receipts and expenditure beforehand. The king involved himself in an expense without knowing to what sum it would amount; and the Parliament voted a subsidy without knowing what it would produce. In 1371, the Parliament granted a subsidy of £50,000, to be levied at the rate of 22s. 3d. on every parish, which supposed the existence of 45,000 parishes in England. It turned out, however, that there were only 9,000. The king convoked a great council, to which he summoned only half the deputies of the last Parliament, one from each county and borough, "to save expense—ad parcendum sumptibus." The matter was laid before this council, which ordained the assessment of every parish at 116s. instead of at 22s. 3d., in order to raise the sum of £50,000. Great disorder must necessarily have accompanied such ignorance.

The third general fact which proves the great increase of importance which the Parliament had obtained at this period, is its participation in the legislation. When we open a collection of the statutes of this reign, we find at the head of each statute one of the two following formulas: "A la requeste de la commune de son roïalme par lor pétitions mises devant lui et son conseil, par assent des prélats, comtes, barons, et autres grantz, au dit Parlement assembles," &c. [Footnote 39] Or: "Par assent des prélats, comtes, et barons, et de tote la, commune du roïalme, au dit Parlement assembles," &c. [Footnote 40] Sometimes the statute begins with these words: "Ce sont les choses que notre seigneur le roi, les prélats, seignours, et la commune ont ordiné en ce présent Parlement." [Footnote 41]

Ordnances And Statutes.

All these formulas express the participation of the House of Commons in the legislation of the country; and prove, as I have already observed, that this participation was generally exercised by the presentation of petitions to the king; the lords deliberated upon these petitions, which were afterwards converted into statutes by the king, without being returned to the House of Commons to receive its express assent under the form of statutes. Accordingly, as the Commons did not interfere in the enactment of statutes by any direct vote, their petitions were frequently mutilated and altered; and the statutes, which were drawn up either by the judges or by the members of the privy council, did not always faithfully convey their meaning. It was probably with a view to remedy this inconvenience that, in the Parliament of 1341, a certain number of prelates, barons, and royal councillors, with twelve knights of shires and six burgesses, were appointed a commission for the purpose of converting into statutes such petitions as gave rise to measures of general legislation.

But all the petitions of the Commons were not resolved into statutes; they frequently gave occasion merely to ordinances. Many dissertations have been written upon the distinction between the legislative acts designated by these two words. It has been maintained that ordinances were issued by the king alone, by the advice of the Lords, but without the concurrence of the Commons. Originally, this distinction was incorrect, for most ordinances were issued, just as statutes were enacted, upon the request of the Commons. Thus, in 1364, the Parliament having desired the passing of sumptuary laws, the king demanded of both Houses, by the chancellor, "whether they would have such matters as they agreed on to be by way of ordinance or of statute?" And they replied: "By way of ordinance, that they might amend the same at their pleasure." [Footnote 42] From this answer it has been inferred, with great appearance of reason, that the nature of statutes was to be perpetual, whereas ordinances were only temporary.

Ordinances were not inscribed, like statutes, upon the rolls of Parliament; they were less solemn in their character, although their object frequently had reference to matters equally legislative and of equally general interest, such as the enactment of jurisdiction or of penalties. It is not more easy to clearly distinguish ordinances from, statutes, than great councils from Parliaments properly so called. All that we can say is, that less importance and stability were attributed to this class of legislative measures.

Conservators Of The Peace.

Legislative measures were not always adopted upon the petition of the Commons; the king also exercised the right of initiative, not only in matter of taxation, but in reference to all other subjects of general interest. Thus, in 1333, Sir Jeffrey Scroop of Markham, in the king's presence, and at his command, informed the prelates, earls, barons, and other nobles, of the disorders committed in the country by bands of armed marauders; pointed out the necessity of repressing their outrages; and demanded of them to suggest to the king such measures as they deemed suitable to effect this purpose. The prelates hereupon retired, saying that it did not befit them to deliberate upon such a subject. The other nobles deliberated among themselves, and proposed to the king a series of regulations for the maintenance of the public peace. These regulations were read in presence of the nobles, the knights of the shires, and the "commons—genz du commun," who all gave their assent to them, and the necessary measures were adopted in consequence. A result of this deliberation was the restoration of the Conservators of the Peace, who had been temporarily appointed by the Earl of Leicester, during the reign of Henry III., and who were the precursors of the justices of the peace.

After all, it is easy to imagine that, in the fourteenth century, confused ideas were entertained as to what was and what was not matter for legislation; since, in our own days, we not only feel, but formally admit, the impossibility of fixing the limit à priori, in a philosophic and absolute manner.

Lecture XXIII.

Continuation of the history of the progress of the Commons House of Parliament during the reign of Edward III. Their interference in questions of peace and war; and on the internal peace of the kingdom. Their resistance of the influence of the Pope, and of the national clergy, in temporal affairs. First efforts of the Commons to repress abuses at elections. First traces of function of Committees of both Houses to investigate certain questions in common.

Political Powers Assumed By Parliament.

It was not merely in the matter of taxation and of general legislation that the House of Commons, during the reign of Edward III., extended and consolidated its rights. Its interference in the administration of public affairs, in politics properly so called, assumed at this period a development previously unexampled, and an entirely a novel character. It began really to take part in the government of the State. This is proved by a multitude of facts.

First, in the matter of peace and war, its intervention became, at this period, habitual and almost indispensable. Mr. Hallam seems to me to have fallen into error on this subject; he is of opinion that the king alone, in the fourteenth century, desired that the Commons should interfere in questions of this kind, in order that he might cast the responsibility upon them, but that they constantly refused to incur it. I think that this assertion is incorrect. The Commons of the fourteenth century frequently sought and exercised this power, and accepted the attendant responsibility; and they always gained greatly by it. The principal facts are these. In 1328, during the minority of Edward, and while Mortimer reigned in his name, the treaty of peace with Scotland, which fully liberated that kingdom from all feudal subordination to England, was concluded with the consent of the Parliament. The Commons are expressly mentioned; and we may suppose that Mortimer was anxious thereby to cover his own responsibility for a disgraceful treaty. In 1331, Edward consulted the Parliament upon the question of peace or war with France, on account of his continental possessions, and also upon his projected journey to Ireland. The Parliament gave its opinion in favour of peace and of the king's departure for Ireland. In 1336, it urged the king to declare war against Scotland, saying: "That the king could no longer, with honour, put up with the wrongs and injuries daily done to him and his subjects by the Scots." [Footnote 43]

In 1341, after Edward's first victories in France, the Parliament pressed him to continue the war, and furnished him with large subsidies; and all classes of society bestirred themselves to support the king in a conflict which had become national. In 1343, the Parliament was convoked to examine and advise what had best be done in the existing state of affairs, especially in regard to the treaty recently concluded by the king with his enemy the king of France. Sir Bartholomew Burghersh told the Parliament that "as the war was begun by the common advice of the prelates, great men, and commons, the king could not treat of, or make peace, without the like assent." [Footnote 44]

The two houses deliberated separately, and gave their opinion that the king ought to make peace if he could obtain a truce that would be honourable and advantageous to himself and his friends; but if not, the Commons declared that they would aid and maintain his quarrel with all their power. In 1344, when the truce with the king of France had been broken off by him, the Parliament, on being consulted, manifested a desire for peace, but thought it could only be obtained by carrying on the war with energy, and voted large subsidies for the purpose. In 1348, the war had become increasingly burdensome; all the subsidies proved insufficient; and the king again consulted the Parliament "concerning the war undertaken with its consent." The Commons, perceiving that they had gone rather too far in their language, now showed greater reserve and answered "that they were not able to advise anything concerning the war, and therefore desired to be excused as to that point; and that the king will be advised by his nobles and council, and what shall be by them determined, they would consent unto, confirm, and establish." [Footnote 45]

The French Wars.

In 1354, the Lord Chamberlain, by the king's command, informed the Parliament: "That there was great hopes of bringing about a peace between England and France, yet the king would not conclude anything without the consent of his Lords and Commons. Wherefore he demanded of them, in the king's name, whether they would assent and agree to a peace, if it might be had by treaty." To this the Commons replied at first, "that what should be agreeable to the king and his council in making of this treaty, would be so to them;" but on being asked again, "If they consented to a perpetual peace, if it might be had," they all unanimously cried out, Yea! Yea! [Footnote 46] Finally, on the 25th of January, 1361, peace having been concluded by the treaty of Bretigny, the Parliament was convoked, the treaty was submitted to its inspection and received its approval, and on the 31st a solemn ceremony took place in the cathedral church at Westminster, when all the members of Parliament, both Lords and Commons, individually swore upon the altar to observe the peace.

In 1368, the negotiations with Scotland were submitted to the consideration of the Parliament; the king of Scotland, David Bruce, offered peace on condition of being relieved from all homage of his crown to the king of England. The Lords and Commons replied, "That they could not assent to any such peace, upon any account, without a disherison of the king, his heirs and crown, which they themselves were sworn to preserve, and therefore must advise him not to hearken to any such propositions;" [Footnote 47] and they voted large subsidies to continue the war.

In 1369, the king consulted the Parliament as to whether he should recommence the war with France, because the conditions of the last treaty had not been observed; the Parliament advised him to do so, and votes subsidies.

These facts prove the most direct and constant intervention of the Commons in matters of peace and war. Nor did they seek to elude this responsibility, so long as the war was successful and national. When the subsidies became excessive, they manifested greater reserve in giving their opinion beforehand. When fortune turned decidedly against Edward III., at the close of his reign, the Commons, as we shall presently see, took advantage of the right of intervention which they had acquired, to possess themselves also of the right of impeaching the ministers to whom they attributed the misfortunes of the time. All this follows in the natural course of things, and clearly demonstrates the continually increasing influence of the Commons in political matters.

Influence On The Administration.

In regard to the internal administration of the country, their progress was not less perceptible. Until the reign of Edward III. all attempts to encroach upon the central government had originated with the barons; it was the barons who, under Henry III. and Edward II., had seized upon the right of appointing to great public offices, and of disposing of the revenues of the State. In 1342, the Commons ventured a similar endeavour, less direct and arrogant in its character, but tending towards the same object by more regular and better chosen means. Profiting by the necessities of the king, who was then destitute of funds, and utterly unable to continue the war with France, they presented to him the two following petitions:

1. "That certain by commission may hear the account of those who have received wools, moneys, or other aid for the king, and that the same may be enrolled in the chancery." To this the king consented, upon condition that the treasurer and lord chief baron should be members of the commission. 2. "That the chancellor and other officers of state may be chosen in open Parliament, and at the same time be openly sworn to observe the laws of the land and Magna Charta." To this also the king consented, but with these restrictions: "That if any such office, by the death or other failure of the incumbent, become void, the choice to remain solely in the king, he taking therein the assent of his council; but that every such officer shall be sworn at the next Parliament, according to the petition; and that every Parliament following the king shall resume into his hands all such offices, so as the said officers shall be left liable to answer all objections." [Footnote 48]

These decisions were immediately converted into statutes. The chancellor and treasurer, with the judges and other officers of the crown, were required to swear to observe them upon the cross of Canterbury. The chancellor, treasurer, and several judges, protested against this act, as being contrary to their first oath and to the laws of the realm; their protest was entered upon the rolls of Parliament, but the statute was nevertheless definitively passed. The Commons had now obtained the most formal recognition of the responsibility of ministers to Parliament. The most pressing necessities alone had extorted consent from the king. Scarcely had the Parliament dissolved, when the king, by his own authority only, formally revoked the statute by writs addressed to all the sheriffs; and it is a most singular circumstance that so illegal an act excited no remonstrance, and that the statute was revoked by the Parliament itself in the year following.

Interference With Ministers.

The mere attempt, however, was a great step. It proves that two fundamental ideas had taken possession of the minds of the representatives of the Commons; first, that the Parliament ought to exercise some influence over the choice of the king's ministers; secondly, that these ministers should be responsible to Parliament for their conduct. As to the first point, the Commons of the fourteenth century employed a very bad method of obtaining it, by claiming that their influence over the choice of the agents of the supreme power should be direct, and by interfering directly in the appointment of ministers; they prodigiously weakened, if they did not utterly destroy, ministerial responsibility: and the progress of representative government has proved that indirect influence, exercised in such matters by a majority of the Parliament, is alone admissible and efficacious. But it was a great thing for the Commons to have attained such growth as to dare to entertain such an idea of their rights. They resumed the exercise of these rights, with greater success, at the close of this reign. The king was old and feeble; his arms were everywhere unsuccessful; abuses multiplied at his court; Edward had fallen beneath the sway of favourites; one of his sons, the Duke of Lancaster, alone enjoyed his favour, and abused it; a woman, named Alice Perers or Pierce, possessed a shameful influence over him, which she employed chiefly in supporting the interest of her friends, in the courts of justice. She might often be seen, sitting within the precincts of the judicial tribunals, intimidating by her presence the judges whom she had pestered with her solicitations.

Their Impeachment.

A report was spread at the same time that the Duke of Lancaster intended to have himself declared heir to the crown, to the prejudice of the youthful son of the Black Prince, who was then in a dying state, and who possessed the affection of the whole nation. A Parliament was convoked in 1376; and a powerful party in both Houses pronounced against the ministers of the king. In the Upper House, the Black Prince himself led the attack, and in the Lower House, the opposition was headed by Peter de la Mare. The Commons demanded that the king's council should be augmented by ten or twelve members, prelates, lords, or others; that no important matter should be decided without the consent of six or four of them; and finally, that all the officers of the crown should be sworn to receive no present, emolument, or reward beyond their legal salaries and expenses. The king consented to all these demands upon condition that he should himself appoint the new councillors, and that the chancellor, the treasurer, and the keeper of the privy seal should be allowed to discharge the duties of their office without their interference. The Commons next endeavoured to obtain that the justices of peace in each county should be appointed by the lords and knights of that county in Parliament, and should not be removed without their consent; but the king refused to grant this. The Commons continued to complain of the king's evil counsellors, attributing to them the distress into which the king had fallen, the dilapidation of the subsidies, and so forth. Finally, with a view to the immediate application of the principles which they maintained, they formerly impeached the Lords Latimer and Nevil, who occupied posts in the king's household, and four merchants of London, named Lyon, Ellis, Peachey, and Bury, who were farmers of the royal subsidies. This accusation had its effect; the accused persons were declared incapable of all public employment, and banished from the court and council, and their property was confiscated. As for Alice Perers, the Commons attacked her also, and the king was constrained to issue the following ordinance: "Whereas complaint has been brought before the king that some women have pursued causes and actions in the king's court by way of maintenance, and for hire or reward, which, thing displeases the king, the king forbids that any woman do it hereafter, and in particular Alice Perers, under the penalty of forfeiting all that the said Alice can forfeit, and of being banished out of the realm." [Footnote 49]

Nothing of this kind had previously been attempted by the Commons. This Parliament sat from the end of April to the 6th of July, 1376, that is, for a longer period than any preceding Parliament; the number of its petitions to the king was 223, and all its acts were so popular that it received the name of the Good Parliament.

Death Of The Black Prince.

But the Commons were not in a position to maintain unassisted so brilliant a success; their triumph had been due in great measure to the co-operation of the Black Prince and his party in the Upper House; and the Black Prince died before the closing of the Parliament. The king, by settling the crown upon his son Richard, dissipated many fears. A new Parliament was convoked on the 27th of January, 1377, and one of his first acts was to solicit the revocation of the sentence passed in the preceding year against Lord Latimer and Alice Perers; which request was granted. Six or seven only of those knights who had been members of the previous Parliament sat in the new one; and Peter de la Mare was imprisoned. Nevertheless, the new Parliament maintained the rights already acquired in several particulars; it insisted upon the proper appropriation of the subsidies, upon an account being given of the receipts, and so forth. The death of Edward III. which occurred on the 21st of June, 1377, put an end to a struggle which was probably about to arise once more between the Commons and the advisers of the crown.

In addition to this intervention of the House of Commons in the general affairs of the State, some particular facts prove the progress which its influence was making in all respects, and deserve to be remarked in this point of view.

Opposition To The Clergy.

I. The Commons began energetically to resist both the power which the Pope still assumed to exercise in England, and the internal influence of the English clergy themselves. In 1343, they protested against the right which the Pope claimed to have to appoint foreigners to certain vacant ecclesiastical benefices, and against other abuses of the same kind. They called upon his majesty and the lords to aid them in expelling the papal power from the kingdom, and addressed to the Pope himself a letter full of the most indignant remonstrances. Previously, the barons alone had actively interfered in affairs of this kind. In 1366, the king informed the Parliament that the Pope intended to cite him to Avignon to do homage for his crown, according to the terms of the treaty concluded with king John, and also to pay the tribute promised upon that occasion. The Lords on the one hand, and the Commons on the other, replied that king John had no right to contract such engagements without the consent of the Parliament, called upon the king to refuse to comply with the Pope's citation, and promised to support him with all their power. In 1371, the Commons complained that the great offices of the State were occupied by ecclesiastics, to the great detriment of the king and the state, and demanded that in future they should be excluded therefrom, leaving to the king the right of choosing his officers, provided they were laymen. Finally, in 1377, they demanded that no ordinance or statute should be enacted upon petition of the clergy, without the consent of the Commons; and that the Commons should be bound by none of the constitutions which the clergy might make for its own advantage and without their consent, since the clergy would not be bound by the statutes or ordinances of the king to which they had not consented. This conflict between the national representatives and the clergy soon became a permanent habit, which contributed powerfully, in the sixteenth century, to the introduction of the Reformation. II. In 1337, the Parliament turned its attention to the protection of the national industry. It prohibited the exportation of English wools, and granted great encouragement to those foreign clothworkers who should take up their residence in England. These regulations soon fell into desuetude in consequence of the wars with France; but they prove the disposition of the Parliament to give attention to all matters of public interest.

Regulation Of Elections.

III. It was also during this reign that, for the first time, we find the Parliament manifesting anxiety about the abuses which were committed at elections, and seeking to prevent their recurrence. In 1372, an ordinance, passed at the suggestion and by the advice of the Commons, prohibited the election of sheriffs during the continuance of their functions, and also of lawyers, because they made use of their authority to procure their own election, and afterwards cared only for their own private interests. [Footnote 50]

IV. Finally, it is under this reign that we first find committees of the two Houses uniting to investigate certain questions in common, and afterwards reporting the result of their investigations to their respective Houses. It is remarkable that this usage, so necessary to facilitate the progress of the representative system and to procure good deliberations, should have arisen precisely at that period when the Parliament became divided into two Houses. It was the natural consequence of their former combination in a single assembly. There was no regular or invariable plan with regard to the mode of the formation of these committees. Sometimes the king himself appointed a certain number of lords, and invited the Commons to choose a certain number of their own members to confer with them; sometimes the Commons named the lords with whom they wished to confer; and sometimes each House appointed its own committee.

Confirmations Of The Old Charters.

It is remarkable that most of the parliamentary sessions of this reign begin with a confirmation of Magna Charta and the Charta de Foresta, which were always regarded as the foundation of the public rights and liberties, and also violated with sufficient frequency to render it necessary incessantly to renew their concession.

All these facts prove the immense progress made by representative government in general, and by the House of Commons in particular, during the course of this reign.

Lecture XXIV.

State of the Parliament under Richard II. Struggle between absolute royalty and parliamentary government. Origin of the Civil List. Progress of the responsibility of ministers. Progress of the returns of the employment of the public revenue. The Commons encroach upon the government. Reaction against the sway of the Commons. Violence and fall of Richard II. Progress of the essential maxims and practices of representative government.

Parliament Under Richard II.

It is a remarkable fact in the history of England that, during the interval which elapsed between the years of 1216 and 1399, an able monarch always succeeded an incapable king, and vice versâ. This circumstance proved very favourable to the establishment of free institutions, which never had time either to fall beneath the yoke of an energetic despotism or to dissolve in anarchy.

The reign of Richard II. does not present, like that of Edward III., the spectacle of the struggle of the Commons in defending their rights, and extending them by the very fact that they were defending them against the royal power, which was incessantly striving to evade those rights because they checked its authority, but which was nevertheless sufficiently acute to perceive that it stood in need of the assistance of the people, and could not afford to quarrel with their representatives. During the reign of Richard, the conflict assumes a more general character; it now involves far more than special or occasional acts of resistance. The question at issue now is, whether the king shall govern according to the advice and under the control of his Parliament, or rule alone and in an almost arbitrary manner. A positive conflict arose between parliamentary government and purely royal government; a violent conflict, full of reciprocal iniquities, but in which the question between liberty in general and absolute power was laid down more clearly and completely than it had ever been before.

Increased Power Of The Commons.

The vicissitudes of this struggle are broadly outlined in facts. The reign of Richard II. may be divided into two parts. From 1377 to 1389, the government was parliamentary, that is to say, the Parliament exercised the supreme control and really directed all public affairs, notwithstanding the attempts at resistance on the part of the king and his favourites. Prom 1389 to 1399, this state of things underwent a change, and the king progressively regained the upper hand. Not that the Parliament abandoned or lost all its rights; for that of voting the taxes, in particular, was boldly maintained, and even respected to a certain extent. But generally speaking, the government was arbitrary, the king had the sole disposal of it, and the Parliament, which had lost its preponderating influence, interfered only as an instrument. This state of things was contrary to the desires and instincts of the country, and it was terminated by a tragical event. Richard was deposed by a proscribed exile who landed in England with sixty men, but found both the Parliament and the entire nation disposed to support him, or at all events, not to oppose him. The deposition of Richard and the elevation of the House of Lancaster were the work of force, but of force supported by that powerful adhesion which the silence and immobility of the public afford to enterprises which tend to overthrow an odious or despised government.

Such was the general aspect of this reign. I shall not linger to detail its events, but merely select and bring to light those facts which relate to the condition of the public institutions of the country, and which prove the truth of that which I have just affirmed.

As you have already seen, during the last years of the reign of Edward III., the influence of the Commons in the government had rapidly augmented; and its further progress was favoured by the minority of Richard II. Sixty years before, the nonage of the king would have placed the State under the control of some faction of barons; but during the latter half of the fourteenth century, the Commons take the initiative in all things, and plainly say how they think the government should be administered.

Important Petitions.

A first Parliament was convoked in the month of September, 1377. Peter de la Mare, formerly the leader of the opposition, was liberated from prison, and chosen speaker of the House of Commons. Three lords selected by the Commons were appointed to confer with them regarding the public necessities. Three propositions were submitted by the Commons to the king and lords:

1. the formation of a council of government; 2. the appointment of "men of virtuous and honest conversation" to guard the person and conduct the education of the king, and to take care "that the charge of the king's household should be borne by the revenues of the crown, so that what was granted to the wars might be expended that way only;" 3. the strict observance of the common law and statutes of the realm, "that they might not be defeated by the singularity of any about the king." [Footnote 51]

The Lords granted the first proposition, rejected the first part of the second as too harsh and interfering too much with the liberty of the royal person, promised to deliberate upon the second part with the great officers of the king's household, and gave their unhesitating assent to the third proposition.

The second of these propositions contains the germ of the distinction between the civil list and taxes voted for the public expenditure. A subsidy was voted by the Commons, after the establishment of the administration. It was agreed that moneys thus raised should be lodged in the keeping of special treasurers, who should give an account of their receipts and disbursements, in such manner as the king and council should order. Two London merchants, William Walworth and John Philpot, were appointed to this office by the king.

Several other petitions were presented by this Parliament.

1. That the evil councillors of the late king Edward might be removed from the royal councils;—which was granted. 2. That, during the king's minority, all the ministers and other great functionaries of State, might be appointed by Parliament; and that if an office fell vacant, while Parliament was not sitting, it should be filled up by the king's council, subject to the approval of the next Parliament;—which was granted in the case of the greater officers, but refused in respect to those of less importance. 3. That Parliament should be holden once a year;—in reply to which it was promised that "the statutes made for that purpose shall be observed and kept." [Footnote 52]

It is clear that, in all these matters, the initiative and general direction of the government belonged to the Commons.

Regulation Of Subsidies.

On the 25th of April, 1378, a second Parliament met, and voted a poll-tax, as the king had involved himself by loans. The chancellor concluded his speech by saying that, for all past and probable expenditure, the treasurers were prepared to give account.

On the 20th of October, 1378, a third Parliament met, and a fresh subsidy was demanded. The Commons maintained that the king ought not to be in want of one, and that a promise had been made that no further imposts should be levied for a long time. The chancellor, Richard le Scroop, denied that any such promise had been made; and long and violent debates ensued upon this question. The Commons demanded that an account should be given them of the way in which the last subsidy had been spent. The chancellor asserted that they had no right to require this, but finally yielded, under protest that it should not be considered a precedent. The Commons accordingly examined the accounts.

The Commons next requested that five or six lords or prelates should be deputed to confer with them respecting the public charges: thus aspiring to make their own body the centre of deliberation, and affecting to regard the lords only as a part of the king's council. The lords refused their request, and proposed that, according to ancient usage, each house should appoint certain of its members to confer together. This suggestion was adopted, and a subsidy voted. The Commons further demanded the appointment of special treasurers to receive and disburse its proceeds; which was granted.

On the 15th of January, 1380, a fourth Parliament was held, for the purpose of demanding fresh subsidies, rendered necessary by the wars with France and Scotland, the revolts in Gascony, and other causes. The chancellor concluded his speech by saying "that the lords of the great council were ready to lay before the Commons the receipts of the last subsidial grants, and the disbursements of the same."

The Commons demanded:

1. That the counsellors given to the king at his accession, should be dismissed (probably because they suspected them of unfaithfulness in the management of the public revenue);

2. That the five chief officers of State should not be changed until the next Parliament; 3. That a commission should be formed to survey and examine, in all his courts and palaces, the state of the king's household, and the expenses and receipts in all the offices;—which was granted, and the commission composed of six lords and six members of the House of Commons; 4. That some of the most discreet barons should be placed about the king, in order to give wise answers to foreign ministers. One baron only, the Earl of Warwick, was appointed for this purpose. A subsidy was then voted.

Disturbed State Of The Country.

In November, 1380, a fifth Parliament met to vote further subsidies; and a long discussion arose between the Commons and the Lords regarding the amount. A fixed sum of £16,000 was required; to meet which the Commons voted a poll-tax of 15 groats on every individual above 15 years of age, mendicants alone excepted; and annexed to their vote the condition that the rich should help the poor to pay the tax. The Commons moreover voted that "no knight, citizen, or burgess of the present Parliament should be collector of this money;" apparently in order to avoid every suspicion of partiality in its assessment. A violent popular insurrection broke out in consequence of this tax; and in order to quell it, the king was obliged to make promises of general enfranchisement.

On the 14th of September, 1382, a sixth Parliament assembled; but was adjourned on account of a quarrel between the Duke of Lancaster and the Earl of Northumberland, who had both come thither in arms, with a numerous retinue. The importance of these great barons was such that the Parliament could not meet until the king had succeeded in reconciling them. Great agitation was felt in this Parliament, as it did not know how to calm the disturbance in the country. The charter of manumission which had been extorted from the king was revoked. The Commons accused the bad government of the king of having caused the insurrection, and drew a melancholy picture of the deplorable state of the people. A committee of inquiry was appointed in consequence. The Commons refused to grant a subsidy, basing their refusal upon the disposition of the country to revolt. The king declared that he would not grant his amnesty for all the offences committed during the late insurrection, unless a subsidy were granted; and under the influence of this threat, the Commons yielded.

Conferences With The Lords.

At the opening of this Parliament, the Commons demanded that the prelates, the lords temporal, the knights, the judges, in a word, the various estates of the realm, should examine, each for their own class, the charges which should be brought; and should report the same to the Commons, who would deliberate upon it. This was an attempt to make themselves a sovereign and undivided assembly; but the king maintained the ancient usage, which required that the Commons should deliberate first of all, and communicate their propositions to the king and lords.

This Parliament was twice prorogued; from the 15th of December to the 15th of January, 1383, and again from the latter date to the 7th of May.

Seven sessions of the Parliament were held from the 7th of May 1383, to the 1st of October 1386. The king endeavoured to free himself from the control of the Parliament. In 1383, he dismissed a very popular chancellor, Richard le Scroop, because he had refused to seal some inconsiderate gifts of property which had become confiscated to the crown. During the same year, the clergy obtained from the king a violent statute against the Lollards or disciples of Wickliffe. The Commons complained of this, saying that the statute was surreptitious; that it had never received their consent, and that "it was not their meaning to bind themselves, or their successors, to the prelates, any more than their ancestors had done before them." They, therefore, demanded and obtained the revocation of the statute; but after their departure, the act of revocation was set aside, and the statute maintained.

In 1383, also, the Commons having demanded to confer with a committee of lords whom they mentioned by name, the king consented to their request, but added that it belonged to him alone to appoint the lords whom he thought fit to send to such conferences. In the same Parliament the Commons prayed the king "to place the most discreet and valuable officers about his person," and to regulate his household in such a way that his revenues might be well administered, and prove sufficient to meet his wants.

Opposition To Parliamentary Rights.

The king answered that he would summon to him the persons who suited him, and that he would regulate his household by the advice of his council. In 1386, the Commons petitioned that the state of the king's household should be examined every year by the chancellor, the treasurer, and the keeper of the privy seal; and that they should be authorized to reform its abuses. The king replied that he would order such an examination when it pleased him. The Commons next inquired who were the ministers and chief officers of State whom the king intended to place at the head of affairs. The king replied that he had officers sufficient at present, and would change them at his pleasure. All these facts indicate an effort on the part of the king and his council to free themselves from the control of Parliament. In proportion as this desire became apparent, the Commons became, in certain respects, more timid and reserved. In 1383, the king consulted them as to whether he should march in person at the head of his army against France; and they replied that it was not in their province to decide upon such a question, but that it should be referred to the council. In 1385, they were consulted on the question of peace or war with France: and refused to give an opinion. The king insisted upon having an answer, but all that he could obtain from them was that "if they were in the king's place, they would prefer peace." Every circumstance, on both sides, indicates an imminent separation, or at least a progressive estrangement. The king was desirous to escape from the guidance of the Parliament; and the Parliament refused to share the responsibility of the king's council.

Richard was under the sway of two favourites, Robert de Vere, Marquis of Dublin, and Michael de la Pole, Earl of Suffolk. Hence the government was courtly, capricious, destructive, and laid claim to an insolent and frivolous exercise of arbitrary authority. The haughty tone of the chancellor Suffolk was extremely offensive in the speeches with which he opened the Parliaments of 1384 and 1385. The Commons could endure the government (though often tyrannical) of a council of barons with much greater willingness than that of a pack of court favourites. The great feudal aristocracy were deeply rooted in the associations of the country; but the arrogance and frivolity of favourites were unspeakably offensive to the people.

The King Compelled To Yield.

The storm broke out in the Parliament which met on the 1st of October, 1386. The Commons, "with one accord," impeached the Earl of Suffolk. The king withdrew to Eltham. The two Houses sent to him to demand the dismissal of the lord treasurer and of the chancellor, relating to whom, they said, they had matters to treat of which could not be safely done whilst he remained in his office. The king sent an evasive answer; and the Parliament declared that it would do nothing so long as the king continued absent, and the Earl of Suffolk remained minister. The king proposed that they should depute forty knights of their number to confer with him. The Parliament refused. After a long and singular correspondence, the king was constrained to yield and to choose new ministers.

Doubt has been cast upon several of these facts, and especially upon the king's correspondence with the Parliament. Knyghton is the only historian who records it, but there is reason to believe it authentic. The Earl of Suffolk was impeached and condemned. The charges brought against him were of little weight as legal crimes, but of great importance as abuses in the government. A committee of eleven lords was appointed by Parliament to regulate all public affairs, and to govern in concert with the king., The Parliament enacted the penalties of high treason against any person who should advise the king not to follow the counsels of this committee, and constrained the king to confirm these resolutions by letters-patent. The king, on his part, made protestation in full Parliament, with his own mouth, "that for any thing which was done in that Parliament he would not any prejudice should come to him or his crown; but that the prerogative and liberties of it should be safe and preserved."

In 1387, the king travelled through the west and north of England; and assembled at Nottingham a council composed of partisans of his favourites. He inquired of the sheriffs of the neighbouring counties what forces they could raise for his assistance, if he should find it necessary to oppose the committee of eleven lords. The sheriffs replied that the people were convinced that the lords were friends to the king, and desired the welfare of the country, and that therefore few persons would be found willing to take up arms against them. The king then commanded the sheriffs to elect to the next Parliament those persons only whom he should nominate. They answered that they could not undertake to secure the election of any persons but those who were to the people's liking. The king then summoned the judges to Nottingham, and proposed to them various questions concerning the rights and prerogatives of the crown. The judges, either intimidated or guided by Sir Robert Tressillian, gave answers tending to establish the arbitrary power of the king and to free his government from the control of the Parliament. This was the evident object of the whole of this struggle.

The Wonderful Parliament.

Dissension now broke out between the king and the lords. A Parliament was convoked. The king inserted in his writs an order to return those persons who were debatis modernis magis indifferentes; but he was soon obliged to erase this clause, and to declare it illegal in new writs. The Parliament met on the 3rd of February, 1388, and took precautions to ensure that it should alone decide upon all great public matters, and that it should not be dissolved after having voted a subsidy. An accusation was lodged by five lords, called appellants, against the favourites of the king, and the judges. This accusation really conceals a great party conflict beneath the forms of judicial procedure. The Upper House declared that, on such grave occasions, the Parliament alone could judge, and was bound by none of the laws which regulate the proceedings of other courts. Eighteen persons were condemned, most of them to death, and many by default. The Parliament separated after having sat five months. It was called the Wonderful Parliament, and also the Pitiless Parliament. It had been careful to declare that the condemnation of the favourite councillors and judges, did not in any way throw discredit upon the king himself.

Increase Of The Royal Power.

The authority of the committee of eleven lords over the government was exercised without opposition for a year. In May, 1389, the king assembled his council, and declared that, being now of full age, he was capable of governing his inheritance himself, and that it was not fitting that he should be in a worse condition than every subject in his dominions who could freely dispose of his goods. "It is well known," he said, "that for several years I have lived under your guardianship, and I thank you for the trouble you have taken on my account; but now that I have reached my majority, I am determined to remain no longer under tutelage, but to take in hand the government of my kingdom and to appoint or revoke my ministers and other officers according to my pleasure." He changed the chancellor and other great officers, and dismissed from his council several of the eleven lords.

Here began the second epoch in this reign—the epoch of reaction against the Parliament. Great obscurity prevails as to the causes which placed Richard II. in a position to effect such a revolution; but he was most probably emboldened to do so by division in the committee of eleven lords, and by the bad use which some of them had made of their power. The king and his new council governed at first with prudence, and manifested great respect for the Parliament. On the 16th of January, 1390, a Parliament was convoked. The new ministers resigned their offices, and submitted their conduct to its scrutiny. The Parliament declared that it found no cause for complaint, and the ministers resumed their functions. Seven Parliaments were held from 1390 to 1397. They became more and more timid and docile, and the king's authority assumed an increasingly extended and arbitrary character. These are the principal facts which characterize this reaction:—

In 1391, the Parliament assured the king that the royalty and prerogatives of his crown should ever remain intact and inviolable; that if they had in any way been infringed, it should be reformed; and that the king should enjoy as large liberty as any of his predecessors ever did: "which prayer seemed to our lord the king honest and reasonable," and he consented to it. In 1391 and 1392, the Parliament admitted the king's power to dispense with the observance of certain statutes in ecclesiastical matters, on condition that these statutes should not be held to be thereby revoked. In 1392, the king, being offended with the city of London, withdrew from it its liberties and imprisoned its magistrates; but shortly afterwards he restored its liberties to the city, and imposed on it a fine of £1000 sterling. In 1394, the judges who had been banished to Ireland by the Parliament of 1388, were recalled. In 1397, a bill was brought forward in the House of Commons, proposing that all extravagant expenditure should be avoided in the royal household, and that those bishops and ladies who had nothing to do at court should not have permission to reside there. The king was incensed at this bill before it was presented to him, and said in the Upper House, "that it was directed against those liberties and royalties which his progenitors had enjoyed, and which he was resolved to uphold and maintain." He ordered the Lords to inform the Commons of his resolution, and directed the Duke of Lancaster to command Sir John Bussy, the Speaker of the Commons, to inform him what member had introduced the bill into Parliament. The Commons became alarmed, and humbly besought the king's pardon. At a conference, they placed the bill in the king's hands, and delivered up to him its proposer, Thomas Haxey. The king forgave them, and the Parliament itself declared Haxey guilty of treason. The clergy saved his life by claiming him as a clerk—which proves that at this period ecclesiastics were not excluded from Parliament.

In September, 1397, Richard II. at length judged himself in a position to assume the plenitude of his power, to annul all that had been done in 1388 to limit his authority, and to avenge his injuries.

A Parliament was convoked. Every precaution had been taken to ensure its docility. The sheriffs had been changed; and all sorts of practices had been put in force to influence the elections. Numerous bodies of troops formed the royal guard. The Parliament was opened with great solemnity. The chancellor, the Bishop of Exeter, took as the text of his speech: Rex unus erit omnibus. Subsequent events fully corresponded with these preliminaries. All the acts of the Parliament of 1388 were revoked, and their authors accused of treason; five of them were condemned to death. The principal leader of the opposition, the Duke of Gloucester, was assassinated in prison at Calais, after having been constrained to acknowledge his past crimes in a confession in which he formerly accused himself of having "restrained the king of his freedom." After these condemnations the same Parliament held a second session at Shrewsbury, in which the answers of the judges in 1387 were declared good and legitimate, and precisely the same measures were taken to render these new decisions inviolable, which had been employed by the Parliament of 1388 to ensure the observance of its own resolutions. These two sessions lasted sixteen days. In less than two years afterwards, Richard was dethroned.

Discontent In The Realm.

He thought himself, however, well secured against such a contingency; for he had taken all sorts of precautions firmly to establish the power which he had just regained. The Parliament had granted him, for his lifetime, the duty upon wools and hides, upon condition only that this concession should not be regarded as a precedent by the kings his successors. As several of the petitions and other matters laid before the Parliament during its last session had not been fully terminated, the Parliament at its dissolution appointed a permanent committee of twelve lords and six members of the House of Commons, to whom it transferred its powers to regulate and decide, in concert with the king, all affairs of public business. Richard thus remained surrounded by the men who had just assisted him to regain arbitrary power; and although the mission of this committee was limited to the settlement of those affairs only which the Parliament had not had time to arrange, it did not hesitate to take possession of the entire government. In concert with the king, it issued ordinances, and declared the penalties of high treason against any person who should attempt to resist its authority; and it imposed on all the lords the obligation, under oath, to respect and maintain all that it should enact. All the powers of Parliament were thus usurped by this committee. Private vexations were added to this general usurpation; in spite of the amnesty which had been proclaimed, even by the last Parliament, Richard continued to wreak his vengeance upon the adherents of the Parliament of 1388. He extorted money from seventeen counties under the pretence that they had taken part in the rebellion; and he forced wealthy citizens to sign blank cheques in order to ransom themselves from prosecutions for treason, which blanks he filled up at his pleasure.

Death Of Richard II.

Such acts as these could not fail to produce general hatred and indignation; and an accidental cause led to their manifestation. A quarrel existed between the Dukes of Hereford and Norfolk; and the last Parliament had left the dispute to the decision of the king and his committee. A single combat between the two dukes was appointed to take place at Coventry; but the king anticipated the duel, and banished both the dukes, one for ten years, and the other for life. By letters patent, he expressedly authorized the Duke of Hereford to sue, during his banishment, for the livery of any lands that might be bequeathed to him. In 1399, John of Gaunt, Duke of Lancaster and father of Hereford, died. The king and his committee annulled the letters-patent, and confiscated the property of the Duke of Lancaster. Richard then set out for Ireland. On the 4th of July, 1399, the Duke of Hereford, who had become Duke of Lancaster by the death of his father, landed in England. He made rapid progress, and when Richard returned to England, he soon found himself abandoned and taken prisoner. A Parliament was convoked in his name on the 30th of September. Richard abdicated. An accusation in thirty-three articles was drawn up against him; and his deposition was pronounced by the Parliament. Henry of Lancaster claimed the crown in virtue of a pretended right of birth. It was granted to him on the 6th of August, 1399, and new writs were issued for the convocation of a Parliament within six days. This was impossible: so the same Parliament met again, and became the Parliament of Henry IV. Richard, who had been kept prisoner in Pomfret Castle, was put to death on the 23rd of October, 1399.

This royal catastrophe was the work of force, just as the deposition of Edward II. had been; but public opinion and public passion had a much greater share in it. Efforts were made to impart even to these acts of violence an appearance of constitutional regularity, and the progress of parliamentary government may be discerned even in its tragical excitements.

The Houses Recover Their Strength.

Such were, in a political point of view, the character and progress of this reign. A few particular facts are worthy of notice.

1. The extension of the practice of forced loans. In 1378, a petition was presented that no man should be constrained to lend money to the king; and it was granted. Nevertheless, in 1386, a writ addressed to several inhabitants of Boston enjoins them to make every person possessing property of more than twenty pounds in value contribute to the loan of £200 which the town had promised to grant to the king, and which would be received in deduction from the subsidies of the present Parliament. 2. The principle of the appropriation of subsidies becomes increasingly prevalent. 3. The Commons make efforts to ensure that their petitions should not be altered when passed into statutes. In 1382, they requested the communication of one of the king's ordinances before it was registered: and desired that some of their members should be present during the preparation of the rolls. The affair of Thomas Haxey gives us reason to believe that the practice commenced, during this reign, of proceeding in the form of bills discussed and adopted by both Houses before they were submitted for the sanction of the king. Nevertheless, in 1382, the House of Commons having requested the opinion of the House of Lords on a question which then occupied their attention, the Lords replied that ancient usage required that the Commons should first communicate their opinion to the king and assembled lords. This very fact, however, proves that the present form of initiative was about to introduce itself. 4. In 1384, the town of Shaftesbury addressed a petition to the king, lords and commons, against the sheriff of Dorsetshire, who had made a false return of an election, and left out the name of the person really elected. We are not aware of the result of this petition, but this is the first instance of the official intervention of the Commons in the matter of contested elections. Only three examples of analogous petitions are to be met with in previous times, viz. under Edward II. in 1319, under Edward III. in 1363, and under Richard II. in 1384. Until then, the king alone had examined the petition, and referred its judgment to the ordinary tribunals. 5. In 1382, a statute ordains, under penalty of fine or other punishment, that all the lords and deputies of the Commons shall repair to Parliament when they are summoned; and that all the sheriffs shall cause all due and accustomed elections to be made, without omitting any borough or city.

Progress Of Liberty.

These particular acts, as well as the general course of events, attest the progress of constitutional maxims and practices.

Lecture XXV.

Summary of the history of the Parliament from the death of Richard II. to the accession of the House of Stuart. Progress of the forms of procedure, and of the privileges of Parliament. Liberty of speech in both Houses. Inviolability of members of Parliament. Judicial power of the House of Lords. Decadence of the Parliament during the wars of the Roses, and under the Tudor dynasty. Causes of this decadence and of the progress of royal authority, from Henry VII. to Elizabeth. Conclusion.

The Tudors And Stuarts.

It is impossible to comprehend the entire scope of the character and influence of great events. Some occurrences, which procure order and liberty for the present, prepare the way for tyranny and confusion in the future; while others, on the contrary, establish absolute power at first, and subsequently give birth to full political freedom. We cannot fail to be struck by this reflection when we consider the prodigious difference which exists between the immediate results and the remote consequences of the deposition of Richard II. It delivered England from an arbitrary, insolent, and disorderly government; but sixty years afterwards it gave rise to the wars of the Red and White Roses, and to all those cruel internal distractions which facilitated the establishment of the Tudor despotism: so that the decay of English liberties, from 1461 to 1640, had its primary source in the event which, in 1399, had consummated their triumph.

In considering the general character of the state of the government from 1399 to 1461, under the first three kings of the House of Lancaster, Henry IV., Henry V., and Henry VI., we must admit that this period was remarkable neither for the unchangeableness nor for the progress of institutions. During this epoch, the Parliament gained none of those signal victories which distinguished the reigns of Edward III. and Richard II.; no really new right, no fundamental and previously unknown guarantee, were added to those already possessed.

Improvement Of Parliament.

Neither did arbitrary power again assume the offensive, and obtain the advantage; and the crown and Parliament engaged in no serious conflict calculated to compromise the existence of either party, or notably to change their degree of political importance. In truth, the work of this period was to regularize the results of previous struggles. The Parliament exercised, without much opposition, the right for which it had fought during the fourteenth century, viz., the voting of taxes, the appropriation of the subsidies, the investigation of the public accounts, intervention in the legislature, and the impeachment of the great officers of the crown. The kings, though frequently seeking to elude the application of these rights, never ignored them completely, or braved them openly. The whole of the political machine remained almost unaltered; but though it underwent no great revolutions, it received many important developments in its internal organization. Practical ameliorations were sought after and attained; further consequences were deduced from established principles; and this epoch is more remarkable for various improvements in the springs of parliamentary government, than for the conquest of great rights, or the formation of fundamental institutions.

The internal constitution of the Parliament, especially during the course of this period, made important progress; from this time we may date, with some degree of accuracy, its principal forms of procedure and its most essential privileges.

One of the most essential is, certainly, liberty of speech. During the reign of Henry IV., we find the speaker of the House of Commons demanding it of the king at the opening of every session. One of the first acts of the first Parliament held during this reign, in 1399, was to obtain the revocation of the sentence passed upon Thomas Haxey, in the reign of Richard II. Every circumstance proves that, under Henry IV., the Commons used greater liberty of speech than they had previously enjoyed. It was, indeed, made a subject of special praise to Sir John Tibetot, speaker in the Parliament of 1406. The king soon manifested great distrust of the extension given to this right, which was probably exercised with all the rudeness which characterized the manners of that time.

First Opposition To Liberty Of Speech.

In 1410, he told the Commons that he hoped that they would no longer use unbecoming language, but act with moderation. In 1411, the speaker, Sir Thomas Chaucer, having made the usual demand at the opening of the session, the king replied that he would allow the Commons to speak as others before had done, but that "he would have no novelties introduced, and would enjoy his prerogative." The speaker requested three days to give a written answer to this observation, and then replied "that he desired no other protestation than what other speakers had made; and that if he should speak anything to the king's displeasure, it might be imputed to his own ignorance only, and not to the body of the Commons," [Footnote 53] which the king granted.

We meet with no infringement upon the liberty of speech enjoyed by the Commons until the Parliament of 1455, at which time a deputy from Bristol, Thomas Young, complained that he had been arrested and imprisoned in the Tower, six years before, on account of a motion which he had brought forward in the House. The object of this motion had been to declare that, as the king then had no children, the Duke of York was the legitimate heir to the throne. The Commons transmitted this petition to the Lords, and the king commanded his council to do whatever might be judged fitting on behalf of the petitioner.

In all official transactions with the king and the lords, the Speaker was the mouthpiece of the House of Commons, and for him especially liberty of speech was then demanded. He acted in the name, and on the behalf, of the House, on almost all occasions. In 1406, we find him giving his consent, in this capacity, to the act which regulated the succession of the crown.

Imprisonment Of The Speaker.

The inviolability of the members of Parliament was a right of no less importance than liberty of speech. The ancient Saxon laws granted protection and security to the members of the Wittenagemot, in going and returning from the place of meeting, provided they were not notorious robbers and brigands. From the formation of the new Parliament, the same right was claimed by its members, who, as they came to transact the business of the king in his national council, were entitled to exemption from arrest or hindrance. In 1403, Sir Thomas Brooke repaired to Parliament as a representative of Somersetshire; and one of his suite, Richard Cheddre, was maltreated and beaten by John Salage. A statute ordained that Salage should pay double damages to Cheddre, according to the award of the Court of Queen's Bench; and "moreover, it is granted by the said Parliament that the same shall be done in times to come, in similar cases." This circumstance gave rise to a petition of the Commons, who prayed that all lords, knights, citizens, and burgesses, coming to Parliament and residing there, might be, as well as their followers and domestics, under the special protection and defence of the king, until their return home; and that they might be arrested for no debt, contract, or suit, or imprisoned in any manner during that time, under penalty of a fine to be paid to the king, and damages to the person injured. The king replied that provision should be made to this effect. The statute of 1403 was renewed in 1433, during the reign of Henry VI.

In 1430, a complaint was laid before the House of Commons on account of the imprisonment, for debt, of William Lake, the servant of William Mildred, one of the members for London. He was set at liberty by a special act of Parliament.

In 1453, the Commons complained to the king and to the lords of the imprisonment of Thomas Thorpe, their speaker, who had been arrested for debt at the suit of the Duke of York. The Lords referred the matter to the judges, who replied through Sir John Fortescue: "That it was not their part to judge of the Parliament's actions, who were judges and makers of the laws themselves; only they said there were divers supersedeas of privilege of Parliament brought into courts; but a general supersedeas, to suppress all proceedings, there was not. For, if there should, it would seem as if the High Court of Parliament, that ministered all justice and equity, should hinder the process of the common law, and so put the party complainant without remedy, inasmuch as actions at common law are not determinable in Parliament; but if any member of Parliament be arrested for such cases as are not for treason, felony, or surety of the peace, or for a judgment had before Parliament, it was usual for such person to be quitted of such arrest, and set at liberty to attend his service in Parliament." [Footnote 54]

Conflicting Opinions.

Notwithstanding this answer of the judges, the Lords decided that Thorpe should remain in prison: and ordered the Commons, in the king's name, to elect another speaker, which they did. But this was a party quarrel; Thorpe was attached to the House of Lancaster, and the Duke of York was then in the ascendant. The privilege then existed, but still in a precarious manner, and a special act of Parliament was necessary on every occasion to ensure its being put into practice.

It was also during this period that the right of parliamentary initiative superseded the right of petition. We have already noticed the abuses originated by the initiative which the House of Commons exercised by means of its petitions; and that the petitions were not always faithfully reproduced in the statutes which they had suggested. We have also seen what efforts had already been put forth by the Commons to prevent these trickeries. In 1414, during the reign of Henry V., they complained of them in a special petition, to which the king replied by promising that in future the statutes should correspond exactly to the petitions granted. But this guarantee was very insecure, and the Commons had already begun to obtain more effectual securities by accustoming themselves to draw up in the form of complete bills, the statutes which they had previously suggested by petitions; and sending them to the House of Lords, that they might be discussed and adopted by that House, before they were presented to the king, who then had nothing more to do than to give or refuse his sanction. It is impossible to indicate with precision the period at which this important change took place; for it was accomplished gradually, and was not remarked by the historians of the time. The usage of petitions co-existed for some time with that of bills. The following facts indicate the progress of the change. Under Richard II., in 1382 (and I have already alluded to this fact), the Commons attempted to obtain the opinion of the Lords, upon a certain question, before bringing under the notice of the king.

Clearer Regulations Of The Parliament.

The attempt was repulsed by the Lords, who staked their honour upon not separating from the king, and upon receiving simultaneously and in concert with him, the propositions of the Commons. The complete initiative of the Houses of Parliament arose, naturally and necessarily, from the voting of taxes. Originally, as you have seen, each class of deputies voted alone those taxes which were destined to weigh especially up on themselves; and the knights of the shire deliberated and voted upon this matter with the Lords. When the knights of the shire had fully combined with the deputies of the boroughs—when the House of Commons deliberated and voted, in a body, upon the same taxes—it became necessary that the votes on such matters should receive the consent of the Lords, who would also have to bear the consequences. Bills passed in reference to subsidies were thenceforward discussed and voted by both Houses before they were laid before the king; and the initiative, in its present form, was thus fully established in this particular case. In 1407, a remarkable incident brought this form of proceeding to light, gave it final sanction, and deduced from it at the same time two other parliamentary rights of great importance. In consequence of a debate which arose between the House of Lords and the House of Commons with regard to the initiative of subsidies, three principles were recognised, and have since remained firmly established:

1. Parliamentary initiative in its present form; 2. The exclusive initiative of the Commons in the matter of subsidies; 3. The right of the Houses, that the king should take no cognizance of the subject of their deliberations until they had come to a decision upon it, and were in a position to lay it before him as the desire of the Lords and Commons in Parliament assembled.

It was natural that that which was practised with regard to subsidies should soon extend to all matters; and that the propositions of Parliament, whatever might be their object, should reach the king as emanating from both Houses instead of being merely the petitions of one of them. Mr. Hallam affirms, without giving any particulars, that this practice became general during the reign of Henry VI., and from this period he dates the real division of the legislature into three branches. I am inclined to think that this practice had commenced at an earlier date, although it was rarely carried into effect; and it is certain, from the very constitution of Parliament at this epoch, that it did not become constant and general until a later period.

In 1406, I find the Commons demanding, by the mouth of the speaker, Sir John Tibetot, the right of withdrawing their bills from the House of Lords, at any stage of the deliberation upon them, in order to introduce amendments; which was granted. The Commons were therefore already in the habit of occasionally drawing up their petitions in the form of bills, and of passing them through the House of Lords before presenting them to the king.

At this period, the House of Lords was still regarded as the great council of the king, and as a sort of intermediary between the privy council and the entire Parliament; and a number of propositions on matters of government, and even of legislation, still emanated from the Commons alone, and were presented, in the form of petitions, to the king and lords. The practice of initiative by way of bills adopted by both Houses could not, therefore, have been general. The periods of the king's minority or absence tended increasingly to impart the character of a great council of government to the House of Lords. Accordingly these epochs, and especially the reign of Henry VI., abound in propositions or petitions of the Commons to the Lords. It was at a later period, when the king and his privy council had regained a more independent power than their predecessors had enjoyed —that is to say, under the Tudor dynasty—that the Upper House became entirely disjoined from the government properly so called, and found itself placed, with respect to the king, in almost the same position as the House of Commons. Then alone did the practice of proceeding by bills discussed in both Houses before they were laid before the king, assume a constant and general character, that is to say, the parliamentary initiative was definitively substituted for the ancient right of petition possessed by each House, and especially by the Commons.

Votes Of Subsidy.

With regard to the order of the debates in Parliament, it was an ancient custom that the king should not reply to the petitions of the Commons until the last day of the session; which rendered it impossible to make the concession of subsidies dependent upon the king's answers. They endeavoured to reverse this order, probably during the reign of Richard II.; for the sixth question which he proposed to the judges was whether, when the king had called the attention of Parliament to any subject, the Parliament might attend to other matters before deciding upon the propositions of the king. The judges replied that such a proceeding was an act of treason. The answers of the judges of Richard II. having been declared illegitimate in the Parliament of 1399, the foregoing dictum was comprised in the general reprobation. Accordingly, in 1401, the Commons maintained that it was not their custom to grant any subsidy until the king had replied to their petitions, and they demanded that this course should be pursued. The king said that he would confer on the subject with the Lords, and on the last day of the session, he replied "that there was never such use known, but that they should first go through with all other business before their petitions were answered; which ordinance the king intended not to alter." We do not find that the Commons then resisted, or attempted to procure the recognition, in a general manner, of the principle which they asserted. But this principle was frequently put into practice in subsequent Parliaments, and the king was forced not to throw any hindrance in its way. In 1407, Parliament opened on the 20th of October. On the 9th and 14th of November, the Commons presented themselves before the king, explained their numerous grievances, received his answer, and granted no subsidies until the 2nd of December following. In 1410, Parliament met on the 27th of January; and it was not until the 9th of May, after it had obtained satisfaction on several points, among others on the dismissal of two members of the privy council, that it granted a subsidy. This practice became almost constant during the reign of Henry VI. We find an evident proof of this in the Parliament held in November 1455. The Commons sent several times to demand of the Lords the appointment of a Protector for the kingdom, on account of the imbecility of Henry VI.; and the Archbishop of Canterbury urged the Lords to give a definitive answer, "for it is well known that the Commons will not give attention to any affairs of the Parliament until they have obtained an answer, and satisfaction of their request."

Judicial Powers Of The Lords.

The principle had, therefore, become a fact, and was generally admitted as a fact.

It was also during the course of this period that elections to Parliament, and the rights of Parliament in the matter of elections, began to be regulated. I have already observed in treating of the formation of the Parliament, that the electoral system had been definitively established by statutes of Henry IV. in 1405, and of Henry VI. in 1429 and 1432. Many facts prove that at this date the importance of the House of Commons had become so great; that the elections were a subject of frequent frauds. A number of statutes of detail, during the reign of Henry VI., were passed to prevent such frauds, and to regulate the procedure by which they should be investigated and punished. Then also, for the first time, we find conditions imposed on the choice of the electors. The ancient spirit of electoral institutions required that the persons elected should be inhabitants of the county or town which they were chosen to represent. This was converted into an express law by a statute of Henry V. in 1413, which was renewed by a statute of Henry VI., in 1444; but the law has fallen into desuetude by the force of circumstances, without ever having been formally repealed.

The judgment of elections continued to belong, during this period, to the lords and the king's council, who were frequently urged to exercise this prerogative by petitions from the Commons.

It was also at this epoch that the judicial power, which originally resided in the entire Parliament, was declared to belong exclusively to the House of Lords. This declaration was made in 1399, at the suggestion of the Commons themselves, and by the mouth of the Archbishop of Canterbury, who said: "That the Commons were only petitioners, and that all judgment belonged to the king and lords; unless it was in statutes, grants of subsidies, and such like." Since this period the Commons, when they desired to interfere in judgments otherwise than by impeachment, were obliged to employ the means of bills of attainder. They adopted this plan in the case of the Duke of Suffolk in 1450, and very frequently afterwards.

Resistance To The Commons.

These are the most notable marks of progress made, during this period, by the constitution and forms of Parliament. If we now consider Parliament, no longer in itself and its own internal proceedings, but in its relations to the government properly so called, we shall find that its rights and influence in matters of taxation, legislation, and public administration were the same as it had won under Edward III. and Richard II., and that it merely exercised them with greater assurance and less opposition. Henry IV. tried more than once to resist the power of the House of Commons; but it had set him upon the throne, and felt itself in a position to confine him within the limit of his authority. In 1404, it demanded of him the dismissal of four officers of his household; and he replied with singular humility "that he knew no cause why they should be removed, but as the Lords and Commons judged it for the interest of the kingdom and his own advantage, he would remove them, and would do as much in future to any minister who should incur the hatred of his people." In 1406, the Commons submitted for the approbation of the king thirty articles which, they said, they had drawn up to ensure the better administration of public affairs, and which they demanded that the king's officers should swear to observe. These articles, though of a temporary nature, were intended to repress many existing abuses, and to restrict the royal prerogative in certain respects. The king thought that he could not refuse his assent. Towards the end of his reign, Henry IV. appeared more bold, and less disposed to yield unresistingly to the control of the Parliament; but his death prevented all serious conflict. The glory of Henry V. and the passion for wars with France filled up his somewhat brief reign; the Parliament sustained him in all his measures, and even went so far as to grant him, in 1415, a subsidy for life, with power to use it arbitrarily and at his pleasure. During the minority of Henry VI., or rather during all that part of his reign which was not stained with civil war, and was in fact a long minority, the power of Parliament reached its climax, and absorbed the entire government. All matters were decided between the Lords and Commons; but it was too soon for the nation, thus left to its own guidance, to provide itself with a regular government. Violent factions arose among the aristocracy, which the House of Commons was not in a condition to repress. That great development of public institutions and liberties which had commenced under king John, and continued with such regularity since the reign of Edward III., was suddenly interrupted, and England plunged into the violent anarchy of the wars of the Red and White Roses, to emerge only into the despotism of the House of Tudor.