[b]There had been, however, a petition of the commons on the same subject, expressed in very general terms, on which this terrible superstructure might artfully be raised. p. 474.[c]p. 626.[d]We find a remarkable petition in 8 H. IV., professedly aimed against the Lollards, but intended, as I strongly suspect, in their favour. It condemns persons preaching against the catholic faith or sacraments to imprisonment till the next parliament, where they were to abide such judgment as should be renderedby the king and peers of the realm. This seems to supersede the burning statute of 2 H. IV., and the spiritual cognizance of heresy. Rot. Parl. p. 583. See, too, p. 626. The petition was expressly granted; but the clergy, I suppose, prevented its appearing on the statute roll.[e]Rot. Parl. vol iii. p. 102.[f]Rot. Parl. vol. iv. p. 22. It is curious that the authors of the Parliamentary History say that the roll of this parliament is lost, and consequently suppress altogether this important petition. Instead of which they give, as their fashion is, impertinent speeches out of Holingshed, which are certainly not genuine, and would be of no value if they were so.[g]Henry VI. and Edward IV. in some cases passed bills with sundry provisions annexed by themselves. Thus the act for resumption of grants, 4 E. IV., was encumbered with 289 clauses in favour of so many persons whom the king meant to exempt from its operation; and the same was done in other acts of the same description. Rot. Parl. vol. v. p. 517.[h]The variations of each statute, as now printed, from the parliamentary roll, whether in form or substance, are noticed in Cotton's Abridgment. It may be worth while to consult the preface to Ruffhead's edition of the Statutes, where this subject is treated at some length.Perhaps the triple division of our legislature may be dated from this innovation. For as it is impossible to deny that, while the king promulgated a statute founded upon a mere petition, he was himself the real legislator, so I think it is equally fair to assert, notwithstanding the formal preamble of our statutes, that laws brought into either house of parliament in a perfect shape, and receiving first the assent of lords and commons, and finally that of the king, who has no power to modify them, must be deemed to proceed, and derive their efficacy, from the joint concurrence of all the three. It is said, indeed, at a much earlier time, that le ley de la terre est fait en parlement par le roi, et les seigneurs espirituels et temporels, et tout la communauté du royaume. Rot. Parl. vol. iii. p. 293. But this, I must allow, was in the violent session of 11 Ric. II., the constitutional authority of which is not to be highly prized.[i]8 H. V. vol. iv. p. 127.[k]The house of commons thanked the king for pardoning Northumberland, whom, as it proved, he had just cause to suspect. 5 H. IV. p. 525.[m]5 H. IV. p. 505.[n]Rot. Parl. vol. iii. p. 529, 568, 573.[o]p. 547.[p]13 H. IV. p 624.[q]Rot. Parl. 8 H. IV. p. 585.[r]13 H. IV. p. 648, 658.[s]Rot. Parl. vol. iii. p. 549, 568, 574, 611.[t]This passage was written before I was aware that the same opinion had been elaborately maintained by Mr. Luders, in one of his valuable essays upon points of constitutional history.[u]Rot. Parl. 8 H. V. vol. iv. p. 125.[x]p. 128.[y]p. 130.[z]7 R. II. vol. iii. p. 170.[a]p. 215.[b]7 R. II. p. 315.[c]4 H. V. vol. iv. p. 98.[d]p. 135.[e]Rot. Parl. 4 H. V. vol. iv. p. 211, 242, 277.[f]p. 371.[g]23 H. VI. vol. v. p. 102. There is rather a curious instance in 3 H. VI. of the jealousy with which the commons regarded any proceedings in parliament where they were not concerned. A controversy arose between the earls marshal and of Warwick respecting their precedence; founded upon the royal blood of the first, and long possession of the second. In this the commons could not affect to interfere judicially; but they found a singular way of meddling, by petitioning the king to confer the dukedom of Norfolk on the earl marshal. vol. iv. p. 273.[h]Rot. Parl. 1 H. VI. p. 189; 3 K. VI. p. 292; 8 H. VI. p. 343.[i]vol. v. 18 H. VI. p. 17.[k]28 H. VI. p. 185.[m]Rot. Parl. vol. iii. p. 430, 449.[n]Rot. Parl. 28 H. VI. vol. v. p. 176.[o]If this were to rest upon antiquity of precedent, one might be produced that would challenge all competition. In the laws of Ethelbert, the first Christian king of Kent, at the end of the sixth century, we find this provision: "If the king call his people to him (i.e. in the witenagemot), and any one does an injury to one of them, let him pay a fine." Wilkins, Leges Anglo-Saxon. p. 2.[p]Hatsell, vol. i. p. 12.[q]Rot. Parl. 5 H. IV. p. 541.[r]The clergy had got a little precedence in this. An act passed 8 H. VI. c. 1, granting privilege from arrest for themselves and servants on their way to convocation.[s]Rot. Parl. vol. iv. p. 357.[t]vol. v. p. 374.[u]Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29.[x]Upon this subject the reader should have recourse to Hatsell's Precedents, vol. i. chap. 1.[y]Rot. Parl. vol. v. p. 337; W. Worcester, p. 415. Mr. Hatsell seems to have overlooked this case, for he mentions that of Strickland, in 1571, as the earliest instance of the crown's interference with freedom of speech in parliament. vol. i. p. 85.[z]This parliament sat at Gloucester.[a]Rot. Parl. vol. iii. p. 611.[b]A notion is entertained by many people, and not without the authority of some very respectable names, that the king is one of the three estates of the realm, the lords spiritual and temporal forming together the second, as the commons in parliament do the third. This is contradicted by the general tenor of our ancient records and law-books; and indeed the analogy of other governments ought to have the greatest weight, even if more reason for doubt appeared upon the face of our own authorities. But the instances where the three estates are declared or implied to be the nobility, clergy, and commons, or at least their representatives in parliament, are too numerous for insertion. This land standeth, says the Chancellor Stillington, in 7th Edward IV., by three states, and above that one principal, that is to wit, lords spiritual, lords temporal, and commons, and over that, state royal, as our sovereign lord the king. Rot. Parl. vol. v. p. 622. Thus, too, it is declared that the treaty of Staples in 1492 was to be confirmed per tres status regni Angliæ ritè et debitè convocatos, videlicet per prelatos et clerum, nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508.I will not, however, suppress one passage, and the only instance that has occurred in my reading, where the king does appear to have been reckoned among the three estates. The commons say, in the 2nd of Henry IV., that the states of the realm may be compared to a trinity, that is, the king, the lords spiritual and temporal, and the commons. Rot. Parl. vol. iii. p. 459. In this expression, however, the sense shows that by estates of the realm they meant members, or necessary parts, of the parliament.Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length, that the three estates are king, lords, and commons, which seems to have been a current doctrine among the popular lawyers of the seventeenth century. His reasoning is chiefly grounded on the baronial tenure of bishops, the validity of acts passed against their consent, and other arguments of the same kind; which might go to prove that there are only at present two estates, but can never turn the king into one.The source of this error is an inattention to the primary sense of the word estate (status), which means an order or condition into which men are classed by the institutions of society. It is only in a secondary, or rather an elliptical application, that it can be referred to their representatives in parliament or national councils. The lords temporal, indeed, of England are identical with the estate of the nobility; but the house of commons is not, strictly speaking, the estate of commonalty, to which its members belong, and from which they are deputed. So the whole body of the clergy are properly speaking one of the estates, and are described as such in the older authorities, 21 Ric. II. Rot. Parl. vol. iii. p. 348, though latterly the lords spiritual in parliament acquired, with less correctness, that appellation. Hody on Convocations, p. 426. The bishops, indeed, may be said, constructively, to represent the whole of the clergy, with whose grievances they are supposed to be best acquainted, and whose rights it is their peculiar duty to defend. And I do not find that the inferior clergy had any other representation in the cortes of Castile and Aragon, where the ecclesiastical order was always counted among the estates of the realm.[c]Rot. Parl. vol. iii. p. 623.[d]Rot. Parl. 5 R. II. p. 100.[e]Stat. 2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7.[f]Rot. Parl. vol. v. p. 7. It appears by a case in the Year Book of the 33rd of Henry VI., that, where the lords made only some minor alterations in a bill sent up to them from the commons, even if it related to a grant of money, the custom was not to remand it for their assent to the amendment. Brooke's Abridgment: Parliament. 4. The passage is worth extracting, in order to illustrate the course of proceeding in parliament at that time. Case fuit que Sir J. P. fuit attaint de certeyn trespas par acte de parliament dont les commons furent assentus, que sil ne vient eins per tiel jour que il forfeytera tiel summe, et les seigneurs done plus longe jour, et le bil nient rebaile al commons arrere; et per Kirby, clerk des roles del parliament, l'use del parliament est, que si bil vient primes a les commons, et ils passent ceo, il est use d'endorser ceo en tiel forme, Soit bayle as seigniors; et si les seigniorsne le royne alteront le bil, donques est use a liverer ceo al clerke del parliamente destre enrol saunz endorser ceo.... Et si les seigniors volent alter un bil in ceo que poet estoyer ore le bil, ils poyent saunz remandre ceo al commons, come si les commons graunte poundage, pur quatuor ans, et les grantent nisi par deux ans, ceo ne serra rebayle al commons; mes si les commons grauntent nisi pur deux ans, et les seigneurs pur quatre ans, la ceo serra reliver al commons, et en cest case les seigniors doyent faire un sedule de lour intent, ou d'endorser le bil en ceste forme, Les seigneurs ceo assentent pur durer par quatuor ans; et quant les commons ount le bil arrere, et ne volent assenter a ceo, ceo ne poet estre un actre; mes si les commons volent assenter, donques ils indorse leur respons sur le mergent ne basse deins le bil en tiel forme, Les commons sont assentans al sedul des seigniors, a mesme cesty bil annexe, et donques sera bayle ad clerke del parliament, ut supra. Et si un bil soit primes liver al seigniors, et le bil passe eux, ils ne usont de fayre ascun endorsement, mess de mitter le bil as commons; et donques, si le bil passe les commons, il est use destre issint endorce, Les commons sont assentants; et ceo prove que il ad passe les seigniors devant, et lour assent est a cest passer del seigniors; et ideo cest acte supra nest bon, pur ceo que ne fuit rebaile as commons.A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's edit.), that a subsidy granted by the commons without assent of the peers is good enough. This cannot surely have been law at that time.[g]Rot. Parl. vol. iii. p. 244.[h]Coke's 4th Institute, p. 15.[i]Glanvil's Reports of Elections, edit. 1774; Introduction, p. 12.[k]4 Prynne, p. 261.[m]Glanvil's Reports, ibid. from Prynne.[n]Glanvil's Reports, ibid. from Prynne.[o]Id. ibid. and Rot. Parl. vol. iii. p. 530.[p]Rot. Parl. vol. v. p. 7.[q]3 Prynne's Register, p. 187. This hypothesis, though embraced by Prynne, is, I confess, much opposed to general opinion; and a very respectable living writer treats such an interpretation of the statute 7 H. IV. as chimerical. The words cited in the text, "as others," mean only, according to him, suitors not duly summoned. Heywood on Elections, vol. i. p. 20. But, as I presume, the summons to freeholders was by general proclamation; so that it is not easy to perceive what difference there could be between summoned and unsummoned suitors. And if the words are supposed to glance at the private summonses to a few friends, by means of which the sheriffs were accustomed to procure a clandestine election, one can hardly imagine that such persons would be styled "duly summoned." It is not unlikely, however, that these large expressions were inadvertently used, and that they led to that inundation of voters without property which rendered the subsequent act of Henry VI. necessary. That of Henry IV. had itself been occasioned by an opposite evil, the close election of knights by a few persons in the name of the county.Yet the consequence of the statute of Henry IV. was not to let in too many voters, or to render elections tumultuous, in the largest of English counties, whatever it might be in others. Prynne has published some singular sheriff's indentures for the county of York, all during the interval between the acts of Henry IV. and Henry VI., which are sealed by a few persons calling themselves the attorneys of some peers and ladies, who, as far as appears, had solely returned the knights of that shire. 3 Prynne, p. 152. What degree of weight these anomalous returns ought to possess I leave to the reader.[r]The majority of prescriptive boroughs have prescriptive corporations, which carry the legal, which is not always the moral, presumption of an original charter. But "many boroughs and towns in England have burgesses by prescription, that never were incorporated." Ch. J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders thinks, I know not how justly, that in the age of Edward I., which is most to our immediate purpose, "there were not perhaps thirty corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I must allow that, in the opinion of many sound lawyers, the representation of unchartered, or at least, unincorporated boroughs was rather arealprivilege, and founded upon tenure, than one arising out of their share in public contributions. Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is very obscure; and perhaps the more so, because the learning directed towards it has more frequently been that of advocates pleading for their clients than of unbiassed antiquaries. If this be kept in view, the lover of constitutional history will find much information in several of the reported cases on controverted elections; particularly those of Tewksbury and Liskeard, in Peckwell's Reports, vol. i.[s]Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in Peckwell's Reports, vol. i. p. 178.[t]Littleton, s. 162, 163.[u]Brady, p. 97.[x]Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even argues that this power of omitting ancient boroughs was legally vested in the sheriff before the 5th of Richard II.; and though the language of that act implies the contrary of this position, yet it is more than probable that most of our parliamentary boroughs by prescription, especially such as were then unincorporated, are indebted for their privileges to the exercise of the sheriff's discretion; not founded on partiality, which would rather have led him to omit them, but on the broad principle that they were sufficiently opulent and important to send representatives to parliament.[y]Willis, Notitia Parliamentaria, vol. i. preface, p. 35.[z]p. 117.[a]It is a perplexing question whether freeholders in socage were liable to contribute towards the wages of knights; and authorities might be produced on both sides. The more probable supposition is, that they were not exempted. See the various petitions relating to the payment of wages in Prynne's fourth Register. This is not unconnected with the question as to their right of suffrage. See p. 115 of this volume. Freeholders within franchises made repeated endeavours to exempt themselves from payment of wages. Thus in 9 H. IV. it was settled by parliament that, to put an end to the disputes on this subject between the people of Cambridgeshire and those of the Isle of Ely, the latter should pay 200l.and be quit in future of all charges on that account. Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that franchise seem to have purchased the right of suffrage, which they still enjoy, though not, I suppose, suitors to the county-court. In most other franchises, and in many cities erected into distinct counties, the same privilege of voting for knights of the shire is practically exercised; but whether this has not proceeded as much from the tendency of returning officers and of parliament to favour the right of election in doubtful cases, as from the merits of their pretensions, may be a question.[b]The wages of knights and burgesses were first reduced to this certain sum by the writs De levandis expensis, 16 E. II. Prynne's fourth Register, p. 53. These were issued at the request of those who had served, after the dissolution of parliament, and included a certain number of days, according to the distance of the county whence they came, for going and returning. It appears by these that thirty-five or forty miles were reckoned a day's journey; which may correct the exaggerated notions of bad roads and tardy locomotion that are sometimes entertained. See Prynne's fourth Register, and Willis's Notitia Parliamentaria, passim.The latest entries of writs for expenses in the close rolls are of 2 H. V.; but they may be proved to have issued much longer; and Prynne traces them to the end of Henry VIII.'s reign, p. 495. Without the formality of this writ a very few instances of towns remunerating their burgesses for attendance in parliament are known to have occurred in later times. Andrew Marvel is commonly said to have been the last who received this honourable salary. A modern book asserts that wages were paid in some Cornish boroughs as late as the eighteenth century. Lysons's Cornwall, preface, p. xxxii; but the passage quoted in proof of this is not precise enough to support so unlikely a fact.[c]3 Prynne, p. 165.[d]4 Prynne, p. 317.[e]4 Prynne, p. 320.[f]3 Prynne, p. 241.[g]5 R. II. stat. ii. c. 4.[h]Luders's Reports, vol. i. p. 15. Sometimes an elected burgess absolutely refused to go to parliament, and drove his constituents to a fresh choice. 3 Prynne, p. 277.[i]3 Prynne, p. 252.[k]3 Prynne, p. 257, de assensu totius communitatis prædictæ elegerunt R. W.; so in several other instances quoted in the ensuing pages.[m]Brady on Boroughs, p. 132, &c. Mr. Allen, than whom no one of equal learning was ever less inclined to depreciate popular rights, inclines more than we should expect to the school of Brady in this point. "There is reason to believe that originally the right of election in boroughs was vested in the governing part of these communities, or in a select portion of the burgesses; and that, in the progress of the house of commons to power and importance, the tendency has been in general to render the elections more popular. It is certain that for many years burgesses were elected in the county courts, and apparently by delegates from the boroughs, who were authorised by their fellow-burgesses to elect representatives for them in parliament. In the reigns of James I. and Charles I., when popular principles were in their greatest vigour, there was a strong disposition in the house of commons to extend the right of suffrage in boroughs, and in many instances these efforts were crowned with success." Edin. Rev. xxviii. 145. But an election by delegates chosen for that purpose by the burgesses at large is very different from one by the governing part of the community. Even in the latter case, however, this part had generally been chosen, at a greater or less interval of time, by the entire body. Sometimes, indeed, corporations fell into self-election and became close.[n]Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p. 224, &c.[o]In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc comitatu commorantes, duos homines de comitatu Rutland, de discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But this deficiency of actual knights soon became very common. In 19 E. II. there were twenty-eight members returned from shires who were not knights, and but twenty-seven who were such. The former had at this time only two shillings or three shillings a day for their wages, while the real knights had four shillings. 4 Prynne, p. 53. 74. But in the next reign their wages were put on a level.[p]Rot. Parl. vol. ii. p. 310.[q]Rot. Parl. 1 H. V. c. 1.[r]See the case of Dublin university in the first volume of Peckwell's Reports of contested elections. Note D, p. 53. The statute itself was repealed by 14 G. III. c. 58.[s]By 23 H. VI. c. 15, none but gentlemen born, generosi a nativitate, are capable of sitting in parliament as knights of counties; an election was set aside 39 H. VI. because the person returned was not of gentle birth. Prynne's third Register. p. 161.[t]Willis, Notitia Parliamentaria, Prynne's fourth Register, p. 1184. A letter in that authentic and interesting accession to our knowledge of ancient times, the Paston collection, shows that eager canvass was sometimes made by country gentlemen in Edward IV.'s reign to represent boroughs. This letter throws light at the same time on the creation or revival of boroughs. The writer tells Sir John Paston, "If ye miss to be burgess of Malden, and my lord chamberlain will, ye may be in another place; there be a dozen towns in England that choose no burgess, which ought to do it: ye may be set in for one of those towns an' ye be friended." This was in 1472. vol. ii. p. 107.[u]Glanvil's Reports of Elections, edit. 1774, Introduction, p. xii.[x]Prynne's third Register, p. 171.[y]28 E. I. c. 8; 9 E. II. It is said that the sheriff was elected by the people of his county in the Anglo-Saxon period; no instance of this however, according to lord Lyttelton, occurs after the Conquest. Shrievalties were commonly sold by the Norman kings. Hist. of Henry II. vol. ii. p. 921.[z]Vita Ricardi II. p. 85.[a]Otterbourne, p. 191. He says of the knights returned on this occasion, that they were not elected per communitatem, ut mos exigit, sed per regiam voluntatem.[b]Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.[c]Prynne's second Reg. p. 450.[d]vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.[e]Upon this dry and obscure subject of inquiry, the nature and constitution of the house of lords during this period, I have been much indebted to the first part of Prynne's Register, and to West's Inquiry into the Manner of creating Peers; which, though written with a party motive, to serve the ministry of 1719 in the peerage bill, deserves, for the perspicuity of the method and style, to be reckoned among the best of our constitutional dissertations.[f]Baronies were often divided by descent among females into many parts, each retaining its character as a fractional member of a barony. The tenants in such case were said to hold of the king by the third, fourth, or twentieth part of a barony, and did service or paid relief in such proportion.[g]Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. 28, 33. That a baron could only be tried by his fellow barons was probably a rule as old as the trial per pais of a commoner. In 4 E. III. Sir Simon Bereford having been accused before the lords in parliament of aiding and advising Mortimer in his treasons, they declared with one voice that he was not their peer; wherefore they were not bound to judge him as a peer of the land; but inasmuch as it was notorious that he had been concerned in usurpation of royal powers and murder of the liege lord (as they styled Edward II.), the lords, as judges of parliament, by assent of the king in parliament, awarded and adjudged him to be hanged. A like sentence with a like protestation was passed on Mautravers and Gournay. There is a very remarkable anomaly in the case of Lord Berkley, who, though undoubtedly a baron, his ancestors having been summoned from the earliest date of writs, put himself on his trial in parliament, by twelve knights of the county of Gloucester. Rot. Parl. vol. ii. p. 53; Rymer, t. iv. p. 734.[h]Prynne, p. 142, &c.; West's Inquiry.[i]Prynne, p. 141.[k]It is worthy of observation that the spiritual peers summoned to parliament were in general considerably more numerous than the temporal. Prynne, p. 114. This appears, among other causes, to have saved the church from that sweeping reformation of its wealth, and perhaps of its doctrines, which the commons were thoroughly inclined to make under Richard II. and Henry IV. Thus the reduction of the spiritual lords by the dissolution of monasteries was indispensably required to bring the ecclesiastical order into due subjection to the state.[m]Perhaps it can hardly be said that the king's prerogative compelled the party summoned, not being a tenant by barony, to take his seat. But though several spiritual persons appear to have been discharged from attendance on account of their holding nothing by barony, as has been justly observed, yet there is, I believe, no instance of any layman's making such an application. The terms of the ancient writ of summons, however, in fide ethomagioquibus nobis tenemini, afford a presumption that a feudal tenure was, in construction of law, the basis of every lord's attendance in parliament. This form was not finally changed to the present, in fide etligeantiâ, till the 46th of Edw. III. Prynne's first Register, p. 206.[n]Collins's Proceedings on Claims of Baronies, p. 24 and 73.[o]Prynne speaks of "the alienation of baronies by sale, gift, or marriage, after which the new purchasers were summoned instead," as if it frequently happened. First Register, p. 239. And several instances are mentioned in the Bergavenny case (Collins's Proceedings, p. 113) where, land-baronies having been entailed by the owners on their heirs male, the heirs general have been excluded from inheriting the dignity.[p]Prynne's first Register, p. 237. This must be understood to mean that no new families were summoned; for the descendants of some who are not supposed to have held land-baronies may constantly be found in later lists. [NoteIX.]
[b]There had been, however, a petition of the commons on the same subject, expressed in very general terms, on which this terrible superstructure might artfully be raised. p. 474.
[b]There had been, however, a petition of the commons on the same subject, expressed in very general terms, on which this terrible superstructure might artfully be raised. p. 474.
[c]p. 626.
[c]p. 626.
[d]We find a remarkable petition in 8 H. IV., professedly aimed against the Lollards, but intended, as I strongly suspect, in their favour. It condemns persons preaching against the catholic faith or sacraments to imprisonment till the next parliament, where they were to abide such judgment as should be renderedby the king and peers of the realm. This seems to supersede the burning statute of 2 H. IV., and the spiritual cognizance of heresy. Rot. Parl. p. 583. See, too, p. 626. The petition was expressly granted; but the clergy, I suppose, prevented its appearing on the statute roll.
[d]We find a remarkable petition in 8 H. IV., professedly aimed against the Lollards, but intended, as I strongly suspect, in their favour. It condemns persons preaching against the catholic faith or sacraments to imprisonment till the next parliament, where they were to abide such judgment as should be renderedby the king and peers of the realm. This seems to supersede the burning statute of 2 H. IV., and the spiritual cognizance of heresy. Rot. Parl. p. 583. See, too, p. 626. The petition was expressly granted; but the clergy, I suppose, prevented its appearing on the statute roll.
[e]Rot. Parl. vol iii. p. 102.
[e]Rot. Parl. vol iii. p. 102.
[f]Rot. Parl. vol. iv. p. 22. It is curious that the authors of the Parliamentary History say that the roll of this parliament is lost, and consequently suppress altogether this important petition. Instead of which they give, as their fashion is, impertinent speeches out of Holingshed, which are certainly not genuine, and would be of no value if they were so.
[f]Rot. Parl. vol. iv. p. 22. It is curious that the authors of the Parliamentary History say that the roll of this parliament is lost, and consequently suppress altogether this important petition. Instead of which they give, as their fashion is, impertinent speeches out of Holingshed, which are certainly not genuine, and would be of no value if they were so.
[g]Henry VI. and Edward IV. in some cases passed bills with sundry provisions annexed by themselves. Thus the act for resumption of grants, 4 E. IV., was encumbered with 289 clauses in favour of so many persons whom the king meant to exempt from its operation; and the same was done in other acts of the same description. Rot. Parl. vol. v. p. 517.
[g]Henry VI. and Edward IV. in some cases passed bills with sundry provisions annexed by themselves. Thus the act for resumption of grants, 4 E. IV., was encumbered with 289 clauses in favour of so many persons whom the king meant to exempt from its operation; and the same was done in other acts of the same description. Rot. Parl. vol. v. p. 517.
[h]The variations of each statute, as now printed, from the parliamentary roll, whether in form or substance, are noticed in Cotton's Abridgment. It may be worth while to consult the preface to Ruffhead's edition of the Statutes, where this subject is treated at some length.Perhaps the triple division of our legislature may be dated from this innovation. For as it is impossible to deny that, while the king promulgated a statute founded upon a mere petition, he was himself the real legislator, so I think it is equally fair to assert, notwithstanding the formal preamble of our statutes, that laws brought into either house of parliament in a perfect shape, and receiving first the assent of lords and commons, and finally that of the king, who has no power to modify them, must be deemed to proceed, and derive their efficacy, from the joint concurrence of all the three. It is said, indeed, at a much earlier time, that le ley de la terre est fait en parlement par le roi, et les seigneurs espirituels et temporels, et tout la communauté du royaume. Rot. Parl. vol. iii. p. 293. But this, I must allow, was in the violent session of 11 Ric. II., the constitutional authority of which is not to be highly prized.
[h]The variations of each statute, as now printed, from the parliamentary roll, whether in form or substance, are noticed in Cotton's Abridgment. It may be worth while to consult the preface to Ruffhead's edition of the Statutes, where this subject is treated at some length.
Perhaps the triple division of our legislature may be dated from this innovation. For as it is impossible to deny that, while the king promulgated a statute founded upon a mere petition, he was himself the real legislator, so I think it is equally fair to assert, notwithstanding the formal preamble of our statutes, that laws brought into either house of parliament in a perfect shape, and receiving first the assent of lords and commons, and finally that of the king, who has no power to modify them, must be deemed to proceed, and derive their efficacy, from the joint concurrence of all the three. It is said, indeed, at a much earlier time, that le ley de la terre est fait en parlement par le roi, et les seigneurs espirituels et temporels, et tout la communauté du royaume. Rot. Parl. vol. iii. p. 293. But this, I must allow, was in the violent session of 11 Ric. II., the constitutional authority of which is not to be highly prized.
[i]8 H. V. vol. iv. p. 127.
[i]8 H. V. vol. iv. p. 127.
[k]The house of commons thanked the king for pardoning Northumberland, whom, as it proved, he had just cause to suspect. 5 H. IV. p. 525.
[k]The house of commons thanked the king for pardoning Northumberland, whom, as it proved, he had just cause to suspect. 5 H. IV. p. 525.
[m]5 H. IV. p. 505.
[m]5 H. IV. p. 505.
[n]Rot. Parl. vol. iii. p. 529, 568, 573.
[n]Rot. Parl. vol. iii. p. 529, 568, 573.
[o]p. 547.
[o]p. 547.
[p]13 H. IV. p 624.
[p]13 H. IV. p 624.
[q]Rot. Parl. 8 H. IV. p. 585.
[q]Rot. Parl. 8 H. IV. p. 585.
[r]13 H. IV. p. 648, 658.
[r]13 H. IV. p. 648, 658.
[s]Rot. Parl. vol. iii. p. 549, 568, 574, 611.
[s]Rot. Parl. vol. iii. p. 549, 568, 574, 611.
[t]This passage was written before I was aware that the same opinion had been elaborately maintained by Mr. Luders, in one of his valuable essays upon points of constitutional history.
[t]This passage was written before I was aware that the same opinion had been elaborately maintained by Mr. Luders, in one of his valuable essays upon points of constitutional history.
[u]Rot. Parl. 8 H. V. vol. iv. p. 125.
[u]Rot. Parl. 8 H. V. vol. iv. p. 125.
[x]p. 128.
[x]p. 128.
[y]p. 130.
[y]p. 130.
[z]7 R. II. vol. iii. p. 170.
[z]7 R. II. vol. iii. p. 170.
[a]p. 215.
[a]p. 215.
[b]7 R. II. p. 315.
[b]7 R. II. p. 315.
[c]4 H. V. vol. iv. p. 98.
[c]4 H. V. vol. iv. p. 98.
[d]p. 135.
[d]p. 135.
[e]Rot. Parl. 4 H. V. vol. iv. p. 211, 242, 277.
[e]Rot. Parl. 4 H. V. vol. iv. p. 211, 242, 277.
[f]p. 371.
[f]p. 371.
[g]23 H. VI. vol. v. p. 102. There is rather a curious instance in 3 H. VI. of the jealousy with which the commons regarded any proceedings in parliament where they were not concerned. A controversy arose between the earls marshal and of Warwick respecting their precedence; founded upon the royal blood of the first, and long possession of the second. In this the commons could not affect to interfere judicially; but they found a singular way of meddling, by petitioning the king to confer the dukedom of Norfolk on the earl marshal. vol. iv. p. 273.
[g]23 H. VI. vol. v. p. 102. There is rather a curious instance in 3 H. VI. of the jealousy with which the commons regarded any proceedings in parliament where they were not concerned. A controversy arose between the earls marshal and of Warwick respecting their precedence; founded upon the royal blood of the first, and long possession of the second. In this the commons could not affect to interfere judicially; but they found a singular way of meddling, by petitioning the king to confer the dukedom of Norfolk on the earl marshal. vol. iv. p. 273.
[h]Rot. Parl. 1 H. VI. p. 189; 3 K. VI. p. 292; 8 H. VI. p. 343.
[h]Rot. Parl. 1 H. VI. p. 189; 3 K. VI. p. 292; 8 H. VI. p. 343.
[i]vol. v. 18 H. VI. p. 17.
[i]vol. v. 18 H. VI. p. 17.
[k]28 H. VI. p. 185.
[k]28 H. VI. p. 185.
[m]Rot. Parl. vol. iii. p. 430, 449.
[m]Rot. Parl. vol. iii. p. 430, 449.
[n]Rot. Parl. 28 H. VI. vol. v. p. 176.
[n]Rot. Parl. 28 H. VI. vol. v. p. 176.
[o]If this were to rest upon antiquity of precedent, one might be produced that would challenge all competition. In the laws of Ethelbert, the first Christian king of Kent, at the end of the sixth century, we find this provision: "If the king call his people to him (i.e. in the witenagemot), and any one does an injury to one of them, let him pay a fine." Wilkins, Leges Anglo-Saxon. p. 2.
[o]If this were to rest upon antiquity of precedent, one might be produced that would challenge all competition. In the laws of Ethelbert, the first Christian king of Kent, at the end of the sixth century, we find this provision: "If the king call his people to him (i.e. in the witenagemot), and any one does an injury to one of them, let him pay a fine." Wilkins, Leges Anglo-Saxon. p. 2.
[p]Hatsell, vol. i. p. 12.
[p]Hatsell, vol. i. p. 12.
[q]Rot. Parl. 5 H. IV. p. 541.
[q]Rot. Parl. 5 H. IV. p. 541.
[r]The clergy had got a little precedence in this. An act passed 8 H. VI. c. 1, granting privilege from arrest for themselves and servants on their way to convocation.
[r]The clergy had got a little precedence in this. An act passed 8 H. VI. c. 1, granting privilege from arrest for themselves and servants on their way to convocation.
[s]Rot. Parl. vol. iv. p. 357.
[s]Rot. Parl. vol. iv. p. 357.
[t]vol. v. p. 374.
[t]vol. v. p. 374.
[u]Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29.
[u]Rot. Parl. vol. v. p. 239; Hatsell's Precedents, p. 29.
[x]Upon this subject the reader should have recourse to Hatsell's Precedents, vol. i. chap. 1.
[x]Upon this subject the reader should have recourse to Hatsell's Precedents, vol. i. chap. 1.
[y]Rot. Parl. vol. v. p. 337; W. Worcester, p. 415. Mr. Hatsell seems to have overlooked this case, for he mentions that of Strickland, in 1571, as the earliest instance of the crown's interference with freedom of speech in parliament. vol. i. p. 85.
[y]Rot. Parl. vol. v. p. 337; W. Worcester, p. 415. Mr. Hatsell seems to have overlooked this case, for he mentions that of Strickland, in 1571, as the earliest instance of the crown's interference with freedom of speech in parliament. vol. i. p. 85.
[z]This parliament sat at Gloucester.
[z]This parliament sat at Gloucester.
[a]Rot. Parl. vol. iii. p. 611.
[a]Rot. Parl. vol. iii. p. 611.
[b]A notion is entertained by many people, and not without the authority of some very respectable names, that the king is one of the three estates of the realm, the lords spiritual and temporal forming together the second, as the commons in parliament do the third. This is contradicted by the general tenor of our ancient records and law-books; and indeed the analogy of other governments ought to have the greatest weight, even if more reason for doubt appeared upon the face of our own authorities. But the instances where the three estates are declared or implied to be the nobility, clergy, and commons, or at least their representatives in parliament, are too numerous for insertion. This land standeth, says the Chancellor Stillington, in 7th Edward IV., by three states, and above that one principal, that is to wit, lords spiritual, lords temporal, and commons, and over that, state royal, as our sovereign lord the king. Rot. Parl. vol. v. p. 622. Thus, too, it is declared that the treaty of Staples in 1492 was to be confirmed per tres status regni Angliæ ritè et debitè convocatos, videlicet per prelatos et clerum, nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508.I will not, however, suppress one passage, and the only instance that has occurred in my reading, where the king does appear to have been reckoned among the three estates. The commons say, in the 2nd of Henry IV., that the states of the realm may be compared to a trinity, that is, the king, the lords spiritual and temporal, and the commons. Rot. Parl. vol. iii. p. 459. In this expression, however, the sense shows that by estates of the realm they meant members, or necessary parts, of the parliament.Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length, that the three estates are king, lords, and commons, which seems to have been a current doctrine among the popular lawyers of the seventeenth century. His reasoning is chiefly grounded on the baronial tenure of bishops, the validity of acts passed against their consent, and other arguments of the same kind; which might go to prove that there are only at present two estates, but can never turn the king into one.The source of this error is an inattention to the primary sense of the word estate (status), which means an order or condition into which men are classed by the institutions of society. It is only in a secondary, or rather an elliptical application, that it can be referred to their representatives in parliament or national councils. The lords temporal, indeed, of England are identical with the estate of the nobility; but the house of commons is not, strictly speaking, the estate of commonalty, to which its members belong, and from which they are deputed. So the whole body of the clergy are properly speaking one of the estates, and are described as such in the older authorities, 21 Ric. II. Rot. Parl. vol. iii. p. 348, though latterly the lords spiritual in parliament acquired, with less correctness, that appellation. Hody on Convocations, p. 426. The bishops, indeed, may be said, constructively, to represent the whole of the clergy, with whose grievances they are supposed to be best acquainted, and whose rights it is their peculiar duty to defend. And I do not find that the inferior clergy had any other representation in the cortes of Castile and Aragon, where the ecclesiastical order was always counted among the estates of the realm.
[b]A notion is entertained by many people, and not without the authority of some very respectable names, that the king is one of the three estates of the realm, the lords spiritual and temporal forming together the second, as the commons in parliament do the third. This is contradicted by the general tenor of our ancient records and law-books; and indeed the analogy of other governments ought to have the greatest weight, even if more reason for doubt appeared upon the face of our own authorities. But the instances where the three estates are declared or implied to be the nobility, clergy, and commons, or at least their representatives in parliament, are too numerous for insertion. This land standeth, says the Chancellor Stillington, in 7th Edward IV., by three states, and above that one principal, that is to wit, lords spiritual, lords temporal, and commons, and over that, state royal, as our sovereign lord the king. Rot. Parl. vol. v. p. 622. Thus, too, it is declared that the treaty of Staples in 1492 was to be confirmed per tres status regni Angliæ ritè et debitè convocatos, videlicet per prelatos et clerum, nobiles et communitates ejusdem regni. Rymer, t. xii. p. 508.
I will not, however, suppress one passage, and the only instance that has occurred in my reading, where the king does appear to have been reckoned among the three estates. The commons say, in the 2nd of Henry IV., that the states of the realm may be compared to a trinity, that is, the king, the lords spiritual and temporal, and the commons. Rot. Parl. vol. iii. p. 459. In this expression, however, the sense shows that by estates of the realm they meant members, or necessary parts, of the parliament.
Whitelocke, on the Parliamentary Writ, vol. ii. p. 43, argues at length, that the three estates are king, lords, and commons, which seems to have been a current doctrine among the popular lawyers of the seventeenth century. His reasoning is chiefly grounded on the baronial tenure of bishops, the validity of acts passed against their consent, and other arguments of the same kind; which might go to prove that there are only at present two estates, but can never turn the king into one.
The source of this error is an inattention to the primary sense of the word estate (status), which means an order or condition into which men are classed by the institutions of society. It is only in a secondary, or rather an elliptical application, that it can be referred to their representatives in parliament or national councils. The lords temporal, indeed, of England are identical with the estate of the nobility; but the house of commons is not, strictly speaking, the estate of commonalty, to which its members belong, and from which they are deputed. So the whole body of the clergy are properly speaking one of the estates, and are described as such in the older authorities, 21 Ric. II. Rot. Parl. vol. iii. p. 348, though latterly the lords spiritual in parliament acquired, with less correctness, that appellation. Hody on Convocations, p. 426. The bishops, indeed, may be said, constructively, to represent the whole of the clergy, with whose grievances they are supposed to be best acquainted, and whose rights it is their peculiar duty to defend. And I do not find that the inferior clergy had any other representation in the cortes of Castile and Aragon, where the ecclesiastical order was always counted among the estates of the realm.
[c]Rot. Parl. vol. iii. p. 623.
[c]Rot. Parl. vol. iii. p. 623.
[d]Rot. Parl. 5 R. II. p. 100.
[d]Rot. Parl. 5 R. II. p. 100.
[e]Stat. 2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7.
[e]Stat. 2 H. V. c. 6, 7, 8, 9; 4 H. VI. c. 7.
[f]Rot. Parl. vol. v. p. 7. It appears by a case in the Year Book of the 33rd of Henry VI., that, where the lords made only some minor alterations in a bill sent up to them from the commons, even if it related to a grant of money, the custom was not to remand it for their assent to the amendment. Brooke's Abridgment: Parliament. 4. The passage is worth extracting, in order to illustrate the course of proceeding in parliament at that time. Case fuit que Sir J. P. fuit attaint de certeyn trespas par acte de parliament dont les commons furent assentus, que sil ne vient eins per tiel jour que il forfeytera tiel summe, et les seigneurs done plus longe jour, et le bil nient rebaile al commons arrere; et per Kirby, clerk des roles del parliament, l'use del parliament est, que si bil vient primes a les commons, et ils passent ceo, il est use d'endorser ceo en tiel forme, Soit bayle as seigniors; et si les seigniorsne le royne alteront le bil, donques est use a liverer ceo al clerke del parliamente destre enrol saunz endorser ceo.... Et si les seigniors volent alter un bil in ceo que poet estoyer ore le bil, ils poyent saunz remandre ceo al commons, come si les commons graunte poundage, pur quatuor ans, et les grantent nisi par deux ans, ceo ne serra rebayle al commons; mes si les commons grauntent nisi pur deux ans, et les seigneurs pur quatre ans, la ceo serra reliver al commons, et en cest case les seigniors doyent faire un sedule de lour intent, ou d'endorser le bil en ceste forme, Les seigneurs ceo assentent pur durer par quatuor ans; et quant les commons ount le bil arrere, et ne volent assenter a ceo, ceo ne poet estre un actre; mes si les commons volent assenter, donques ils indorse leur respons sur le mergent ne basse deins le bil en tiel forme, Les commons sont assentans al sedul des seigniors, a mesme cesty bil annexe, et donques sera bayle ad clerke del parliament, ut supra. Et si un bil soit primes liver al seigniors, et le bil passe eux, ils ne usont de fayre ascun endorsement, mess de mitter le bil as commons; et donques, si le bil passe les commons, il est use destre issint endorce, Les commons sont assentants; et ceo prove que il ad passe les seigniors devant, et lour assent est a cest passer del seigniors; et ideo cest acte supra nest bon, pur ceo que ne fuit rebaile as commons.A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's edit.), that a subsidy granted by the commons without assent of the peers is good enough. This cannot surely have been law at that time.
[f]Rot. Parl. vol. v. p. 7. It appears by a case in the Year Book of the 33rd of Henry VI., that, where the lords made only some minor alterations in a bill sent up to them from the commons, even if it related to a grant of money, the custom was not to remand it for their assent to the amendment. Brooke's Abridgment: Parliament. 4. The passage is worth extracting, in order to illustrate the course of proceeding in parliament at that time. Case fuit que Sir J. P. fuit attaint de certeyn trespas par acte de parliament dont les commons furent assentus, que sil ne vient eins per tiel jour que il forfeytera tiel summe, et les seigneurs done plus longe jour, et le bil nient rebaile al commons arrere; et per Kirby, clerk des roles del parliament, l'use del parliament est, que si bil vient primes a les commons, et ils passent ceo, il est use d'endorser ceo en tiel forme, Soit bayle as seigniors; et si les seigniorsne le royne alteront le bil, donques est use a liverer ceo al clerke del parliamente destre enrol saunz endorser ceo.... Et si les seigniors volent alter un bil in ceo que poet estoyer ore le bil, ils poyent saunz remandre ceo al commons, come si les commons graunte poundage, pur quatuor ans, et les grantent nisi par deux ans, ceo ne serra rebayle al commons; mes si les commons grauntent nisi pur deux ans, et les seigneurs pur quatre ans, la ceo serra reliver al commons, et en cest case les seigniors doyent faire un sedule de lour intent, ou d'endorser le bil en ceste forme, Les seigneurs ceo assentent pur durer par quatuor ans; et quant les commons ount le bil arrere, et ne volent assenter a ceo, ceo ne poet estre un actre; mes si les commons volent assenter, donques ils indorse leur respons sur le mergent ne basse deins le bil en tiel forme, Les commons sont assentans al sedul des seigniors, a mesme cesty bil annexe, et donques sera bayle ad clerke del parliament, ut supra. Et si un bil soit primes liver al seigniors, et le bil passe eux, ils ne usont de fayre ascun endorsement, mess de mitter le bil as commons; et donques, si le bil passe les commons, il est use destre issint endorce, Les commons sont assentants; et ceo prove que il ad passe les seigniors devant, et lour assent est a cest passer del seigniors; et ideo cest acte supra nest bon, pur ceo que ne fuit rebaile as commons.
A singular assertion is made in the Year Book 21 E. IV. p. 48 (Maynard's edit.), that a subsidy granted by the commons without assent of the peers is good enough. This cannot surely have been law at that time.
[g]Rot. Parl. vol. iii. p. 244.
[g]Rot. Parl. vol. iii. p. 244.
[h]Coke's 4th Institute, p. 15.
[h]Coke's 4th Institute, p. 15.
[i]Glanvil's Reports of Elections, edit. 1774; Introduction, p. 12.
[i]Glanvil's Reports of Elections, edit. 1774; Introduction, p. 12.
[k]4 Prynne, p. 261.
[k]4 Prynne, p. 261.
[m]Glanvil's Reports, ibid. from Prynne.
[m]Glanvil's Reports, ibid. from Prynne.
[n]Glanvil's Reports, ibid. from Prynne.
[n]Glanvil's Reports, ibid. from Prynne.
[o]Id. ibid. and Rot. Parl. vol. iii. p. 530.
[o]Id. ibid. and Rot. Parl. vol. iii. p. 530.
[p]Rot. Parl. vol. v. p. 7.
[p]Rot. Parl. vol. v. p. 7.
[q]3 Prynne's Register, p. 187. This hypothesis, though embraced by Prynne, is, I confess, much opposed to general opinion; and a very respectable living writer treats such an interpretation of the statute 7 H. IV. as chimerical. The words cited in the text, "as others," mean only, according to him, suitors not duly summoned. Heywood on Elections, vol. i. p. 20. But, as I presume, the summons to freeholders was by general proclamation; so that it is not easy to perceive what difference there could be between summoned and unsummoned suitors. And if the words are supposed to glance at the private summonses to a few friends, by means of which the sheriffs were accustomed to procure a clandestine election, one can hardly imagine that such persons would be styled "duly summoned." It is not unlikely, however, that these large expressions were inadvertently used, and that they led to that inundation of voters without property which rendered the subsequent act of Henry VI. necessary. That of Henry IV. had itself been occasioned by an opposite evil, the close election of knights by a few persons in the name of the county.Yet the consequence of the statute of Henry IV. was not to let in too many voters, or to render elections tumultuous, in the largest of English counties, whatever it might be in others. Prynne has published some singular sheriff's indentures for the county of York, all during the interval between the acts of Henry IV. and Henry VI., which are sealed by a few persons calling themselves the attorneys of some peers and ladies, who, as far as appears, had solely returned the knights of that shire. 3 Prynne, p. 152. What degree of weight these anomalous returns ought to possess I leave to the reader.
[q]3 Prynne's Register, p. 187. This hypothesis, though embraced by Prynne, is, I confess, much opposed to general opinion; and a very respectable living writer treats such an interpretation of the statute 7 H. IV. as chimerical. The words cited in the text, "as others," mean only, according to him, suitors not duly summoned. Heywood on Elections, vol. i. p. 20. But, as I presume, the summons to freeholders was by general proclamation; so that it is not easy to perceive what difference there could be between summoned and unsummoned suitors. And if the words are supposed to glance at the private summonses to a few friends, by means of which the sheriffs were accustomed to procure a clandestine election, one can hardly imagine that such persons would be styled "duly summoned." It is not unlikely, however, that these large expressions were inadvertently used, and that they led to that inundation of voters without property which rendered the subsequent act of Henry VI. necessary. That of Henry IV. had itself been occasioned by an opposite evil, the close election of knights by a few persons in the name of the county.
Yet the consequence of the statute of Henry IV. was not to let in too many voters, or to render elections tumultuous, in the largest of English counties, whatever it might be in others. Prynne has published some singular sheriff's indentures for the county of York, all during the interval between the acts of Henry IV. and Henry VI., which are sealed by a few persons calling themselves the attorneys of some peers and ladies, who, as far as appears, had solely returned the knights of that shire. 3 Prynne, p. 152. What degree of weight these anomalous returns ought to possess I leave to the reader.
[r]The majority of prescriptive boroughs have prescriptive corporations, which carry the legal, which is not always the moral, presumption of an original charter. But "many boroughs and towns in England have burgesses by prescription, that never were incorporated." Ch. J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders thinks, I know not how justly, that in the age of Edward I., which is most to our immediate purpose, "there were not perhaps thirty corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I must allow that, in the opinion of many sound lawyers, the representation of unchartered, or at least, unincorporated boroughs was rather arealprivilege, and founded upon tenure, than one arising out of their share in public contributions. Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is very obscure; and perhaps the more so, because the learning directed towards it has more frequently been that of advocates pleading for their clients than of unbiassed antiquaries. If this be kept in view, the lover of constitutional history will find much information in several of the reported cases on controverted elections; particularly those of Tewksbury and Liskeard, in Peckwell's Reports, vol. i.
[r]The majority of prescriptive boroughs have prescriptive corporations, which carry the legal, which is not always the moral, presumption of an original charter. But "many boroughs and towns in England have burgesses by prescription, that never were incorporated." Ch. J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders thinks, I know not how justly, that in the age of Edward I., which is most to our immediate purpose, "there were not perhaps thirty corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I must allow that, in the opinion of many sound lawyers, the representation of unchartered, or at least, unincorporated boroughs was rather arealprivilege, and founded upon tenure, than one arising out of their share in public contributions. Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is very obscure; and perhaps the more so, because the learning directed towards it has more frequently been that of advocates pleading for their clients than of unbiassed antiquaries. If this be kept in view, the lover of constitutional history will find much information in several of the reported cases on controverted elections; particularly those of Tewksbury and Liskeard, in Peckwell's Reports, vol. i.
[s]Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in Peckwell's Reports, vol. i. p. 178.
[s]Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in Peckwell's Reports, vol. i. p. 178.
[t]Littleton, s. 162, 163.
[t]Littleton, s. 162, 163.
[u]Brady, p. 97.
[u]Brady, p. 97.
[x]Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even argues that this power of omitting ancient boroughs was legally vested in the sheriff before the 5th of Richard II.; and though the language of that act implies the contrary of this position, yet it is more than probable that most of our parliamentary boroughs by prescription, especially such as were then unincorporated, are indebted for their privileges to the exercise of the sheriff's discretion; not founded on partiality, which would rather have led him to omit them, but on the broad principle that they were sufficiently opulent and important to send representatives to parliament.
[x]Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even argues that this power of omitting ancient boroughs was legally vested in the sheriff before the 5th of Richard II.; and though the language of that act implies the contrary of this position, yet it is more than probable that most of our parliamentary boroughs by prescription, especially such as were then unincorporated, are indebted for their privileges to the exercise of the sheriff's discretion; not founded on partiality, which would rather have led him to omit them, but on the broad principle that they were sufficiently opulent and important to send representatives to parliament.
[y]Willis, Notitia Parliamentaria, vol. i. preface, p. 35.
[y]Willis, Notitia Parliamentaria, vol. i. preface, p. 35.
[z]p. 117.
[z]p. 117.
[a]It is a perplexing question whether freeholders in socage were liable to contribute towards the wages of knights; and authorities might be produced on both sides. The more probable supposition is, that they were not exempted. See the various petitions relating to the payment of wages in Prynne's fourth Register. This is not unconnected with the question as to their right of suffrage. See p. 115 of this volume. Freeholders within franchises made repeated endeavours to exempt themselves from payment of wages. Thus in 9 H. IV. it was settled by parliament that, to put an end to the disputes on this subject between the people of Cambridgeshire and those of the Isle of Ely, the latter should pay 200l.and be quit in future of all charges on that account. Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that franchise seem to have purchased the right of suffrage, which they still enjoy, though not, I suppose, suitors to the county-court. In most other franchises, and in many cities erected into distinct counties, the same privilege of voting for knights of the shire is practically exercised; but whether this has not proceeded as much from the tendency of returning officers and of parliament to favour the right of election in doubtful cases, as from the merits of their pretensions, may be a question.
[a]It is a perplexing question whether freeholders in socage were liable to contribute towards the wages of knights; and authorities might be produced on both sides. The more probable supposition is, that they were not exempted. See the various petitions relating to the payment of wages in Prynne's fourth Register. This is not unconnected with the question as to their right of suffrage. See p. 115 of this volume. Freeholders within franchises made repeated endeavours to exempt themselves from payment of wages. Thus in 9 H. IV. it was settled by parliament that, to put an end to the disputes on this subject between the people of Cambridgeshire and those of the Isle of Ely, the latter should pay 200l.and be quit in future of all charges on that account. Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that franchise seem to have purchased the right of suffrage, which they still enjoy, though not, I suppose, suitors to the county-court. In most other franchises, and in many cities erected into distinct counties, the same privilege of voting for knights of the shire is practically exercised; but whether this has not proceeded as much from the tendency of returning officers and of parliament to favour the right of election in doubtful cases, as from the merits of their pretensions, may be a question.
[b]The wages of knights and burgesses were first reduced to this certain sum by the writs De levandis expensis, 16 E. II. Prynne's fourth Register, p. 53. These were issued at the request of those who had served, after the dissolution of parliament, and included a certain number of days, according to the distance of the county whence they came, for going and returning. It appears by these that thirty-five or forty miles were reckoned a day's journey; which may correct the exaggerated notions of bad roads and tardy locomotion that are sometimes entertained. See Prynne's fourth Register, and Willis's Notitia Parliamentaria, passim.The latest entries of writs for expenses in the close rolls are of 2 H. V.; but they may be proved to have issued much longer; and Prynne traces them to the end of Henry VIII.'s reign, p. 495. Without the formality of this writ a very few instances of towns remunerating their burgesses for attendance in parliament are known to have occurred in later times. Andrew Marvel is commonly said to have been the last who received this honourable salary. A modern book asserts that wages were paid in some Cornish boroughs as late as the eighteenth century. Lysons's Cornwall, preface, p. xxxii; but the passage quoted in proof of this is not precise enough to support so unlikely a fact.
[b]The wages of knights and burgesses were first reduced to this certain sum by the writs De levandis expensis, 16 E. II. Prynne's fourth Register, p. 53. These were issued at the request of those who had served, after the dissolution of parliament, and included a certain number of days, according to the distance of the county whence they came, for going and returning. It appears by these that thirty-five or forty miles were reckoned a day's journey; which may correct the exaggerated notions of bad roads and tardy locomotion that are sometimes entertained. See Prynne's fourth Register, and Willis's Notitia Parliamentaria, passim.
The latest entries of writs for expenses in the close rolls are of 2 H. V.; but they may be proved to have issued much longer; and Prynne traces them to the end of Henry VIII.'s reign, p. 495. Without the formality of this writ a very few instances of towns remunerating their burgesses for attendance in parliament are known to have occurred in later times. Andrew Marvel is commonly said to have been the last who received this honourable salary. A modern book asserts that wages were paid in some Cornish boroughs as late as the eighteenth century. Lysons's Cornwall, preface, p. xxxii; but the passage quoted in proof of this is not precise enough to support so unlikely a fact.
[c]3 Prynne, p. 165.
[c]3 Prynne, p. 165.
[d]4 Prynne, p. 317.
[d]4 Prynne, p. 317.
[e]4 Prynne, p. 320.
[e]4 Prynne, p. 320.
[f]3 Prynne, p. 241.
[f]3 Prynne, p. 241.
[g]5 R. II. stat. ii. c. 4.
[g]5 R. II. stat. ii. c. 4.
[h]Luders's Reports, vol. i. p. 15. Sometimes an elected burgess absolutely refused to go to parliament, and drove his constituents to a fresh choice. 3 Prynne, p. 277.
[h]Luders's Reports, vol. i. p. 15. Sometimes an elected burgess absolutely refused to go to parliament, and drove his constituents to a fresh choice. 3 Prynne, p. 277.
[i]3 Prynne, p. 252.
[i]3 Prynne, p. 252.
[k]3 Prynne, p. 257, de assensu totius communitatis prædictæ elegerunt R. W.; so in several other instances quoted in the ensuing pages.
[k]3 Prynne, p. 257, de assensu totius communitatis prædictæ elegerunt R. W.; so in several other instances quoted in the ensuing pages.
[m]Brady on Boroughs, p. 132, &c. Mr. Allen, than whom no one of equal learning was ever less inclined to depreciate popular rights, inclines more than we should expect to the school of Brady in this point. "There is reason to believe that originally the right of election in boroughs was vested in the governing part of these communities, or in a select portion of the burgesses; and that, in the progress of the house of commons to power and importance, the tendency has been in general to render the elections more popular. It is certain that for many years burgesses were elected in the county courts, and apparently by delegates from the boroughs, who were authorised by their fellow-burgesses to elect representatives for them in parliament. In the reigns of James I. and Charles I., when popular principles were in their greatest vigour, there was a strong disposition in the house of commons to extend the right of suffrage in boroughs, and in many instances these efforts were crowned with success." Edin. Rev. xxviii. 145. But an election by delegates chosen for that purpose by the burgesses at large is very different from one by the governing part of the community. Even in the latter case, however, this part had generally been chosen, at a greater or less interval of time, by the entire body. Sometimes, indeed, corporations fell into self-election and became close.
[m]Brady on Boroughs, p. 132, &c. Mr. Allen, than whom no one of equal learning was ever less inclined to depreciate popular rights, inclines more than we should expect to the school of Brady in this point. "There is reason to believe that originally the right of election in boroughs was vested in the governing part of these communities, or in a select portion of the burgesses; and that, in the progress of the house of commons to power and importance, the tendency has been in general to render the elections more popular. It is certain that for many years burgesses were elected in the county courts, and apparently by delegates from the boroughs, who were authorised by their fellow-burgesses to elect representatives for them in parliament. In the reigns of James I. and Charles I., when popular principles were in their greatest vigour, there was a strong disposition in the house of commons to extend the right of suffrage in boroughs, and in many instances these efforts were crowned with success." Edin. Rev. xxviii. 145. But an election by delegates chosen for that purpose by the burgesses at large is very different from one by the governing part of the community. Even in the latter case, however, this part had generally been chosen, at a greater or less interval of time, by the entire body. Sometimes, indeed, corporations fell into self-election and became close.
[n]Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p. 224, &c.
[n]Willis, Notitia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p. 224, &c.
[o]In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc comitatu commorantes, duos homines de comitatu Rutland, de discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But this deficiency of actual knights soon became very common. In 19 E. II. there were twenty-eight members returned from shires who were not knights, and but twenty-seven who were such. The former had at this time only two shillings or three shillings a day for their wages, while the real knights had four shillings. 4 Prynne, p. 53. 74. But in the next reign their wages were put on a level.
[o]In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc comitatu commorantes, duos homines de comitatu Rutland, de discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But this deficiency of actual knights soon became very common. In 19 E. II. there were twenty-eight members returned from shires who were not knights, and but twenty-seven who were such. The former had at this time only two shillings or three shillings a day for their wages, while the real knights had four shillings. 4 Prynne, p. 53. 74. But in the next reign their wages were put on a level.
[p]Rot. Parl. vol. ii. p. 310.
[p]Rot. Parl. vol. ii. p. 310.
[q]Rot. Parl. 1 H. V. c. 1.
[q]Rot. Parl. 1 H. V. c. 1.
[r]See the case of Dublin university in the first volume of Peckwell's Reports of contested elections. Note D, p. 53. The statute itself was repealed by 14 G. III. c. 58.
[r]See the case of Dublin university in the first volume of Peckwell's Reports of contested elections. Note D, p. 53. The statute itself was repealed by 14 G. III. c. 58.
[s]By 23 H. VI. c. 15, none but gentlemen born, generosi a nativitate, are capable of sitting in parliament as knights of counties; an election was set aside 39 H. VI. because the person returned was not of gentle birth. Prynne's third Register. p. 161.
[s]By 23 H. VI. c. 15, none but gentlemen born, generosi a nativitate, are capable of sitting in parliament as knights of counties; an election was set aside 39 H. VI. because the person returned was not of gentle birth. Prynne's third Register. p. 161.
[t]Willis, Notitia Parliamentaria, Prynne's fourth Register, p. 1184. A letter in that authentic and interesting accession to our knowledge of ancient times, the Paston collection, shows that eager canvass was sometimes made by country gentlemen in Edward IV.'s reign to represent boroughs. This letter throws light at the same time on the creation or revival of boroughs. The writer tells Sir John Paston, "If ye miss to be burgess of Malden, and my lord chamberlain will, ye may be in another place; there be a dozen towns in England that choose no burgess, which ought to do it: ye may be set in for one of those towns an' ye be friended." This was in 1472. vol. ii. p. 107.
[t]Willis, Notitia Parliamentaria, Prynne's fourth Register, p. 1184. A letter in that authentic and interesting accession to our knowledge of ancient times, the Paston collection, shows that eager canvass was sometimes made by country gentlemen in Edward IV.'s reign to represent boroughs. This letter throws light at the same time on the creation or revival of boroughs. The writer tells Sir John Paston, "If ye miss to be burgess of Malden, and my lord chamberlain will, ye may be in another place; there be a dozen towns in England that choose no burgess, which ought to do it: ye may be set in for one of those towns an' ye be friended." This was in 1472. vol. ii. p. 107.
[u]Glanvil's Reports of Elections, edit. 1774, Introduction, p. xii.
[u]Glanvil's Reports of Elections, edit. 1774, Introduction, p. xii.
[x]Prynne's third Register, p. 171.
[x]Prynne's third Register, p. 171.
[y]28 E. I. c. 8; 9 E. II. It is said that the sheriff was elected by the people of his county in the Anglo-Saxon period; no instance of this however, according to lord Lyttelton, occurs after the Conquest. Shrievalties were commonly sold by the Norman kings. Hist. of Henry II. vol. ii. p. 921.
[y]28 E. I. c. 8; 9 E. II. It is said that the sheriff was elected by the people of his county in the Anglo-Saxon period; no instance of this however, according to lord Lyttelton, occurs after the Conquest. Shrievalties were commonly sold by the Norman kings. Hist. of Henry II. vol. ii. p. 921.
[z]Vita Ricardi II. p. 85.
[z]Vita Ricardi II. p. 85.
[a]Otterbourne, p. 191. He says of the knights returned on this occasion, that they were not elected per communitatem, ut mos exigit, sed per regiam voluntatem.
[a]Otterbourne, p. 191. He says of the knights returned on this occasion, that they were not elected per communitatem, ut mos exigit, sed per regiam voluntatem.
[b]Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.
[b]Prynne's second Reg. p. 141; Rot. Parl. vol. v. p. 367.
[c]Prynne's second Reg. p. 450.
[c]Prynne's second Reg. p. 450.
[d]vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.
[d]vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.
[e]Upon this dry and obscure subject of inquiry, the nature and constitution of the house of lords during this period, I have been much indebted to the first part of Prynne's Register, and to West's Inquiry into the Manner of creating Peers; which, though written with a party motive, to serve the ministry of 1719 in the peerage bill, deserves, for the perspicuity of the method and style, to be reckoned among the best of our constitutional dissertations.
[e]Upon this dry and obscure subject of inquiry, the nature and constitution of the house of lords during this period, I have been much indebted to the first part of Prynne's Register, and to West's Inquiry into the Manner of creating Peers; which, though written with a party motive, to serve the ministry of 1719 in the peerage bill, deserves, for the perspicuity of the method and style, to be reckoned among the best of our constitutional dissertations.
[f]Baronies were often divided by descent among females into many parts, each retaining its character as a fractional member of a barony. The tenants in such case were said to hold of the king by the third, fourth, or twentieth part of a barony, and did service or paid relief in such proportion.
[f]Baronies were often divided by descent among females into many parts, each retaining its character as a fractional member of a barony. The tenants in such case were said to hold of the king by the third, fourth, or twentieth part of a barony, and did service or paid relief in such proportion.
[g]Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. 28, 33. That a baron could only be tried by his fellow barons was probably a rule as old as the trial per pais of a commoner. In 4 E. III. Sir Simon Bereford having been accused before the lords in parliament of aiding and advising Mortimer in his treasons, they declared with one voice that he was not their peer; wherefore they were not bound to judge him as a peer of the land; but inasmuch as it was notorious that he had been concerned in usurpation of royal powers and murder of the liege lord (as they styled Edward II.), the lords, as judges of parliament, by assent of the king in parliament, awarded and adjudged him to be hanged. A like sentence with a like protestation was passed on Mautravers and Gournay. There is a very remarkable anomaly in the case of Lord Berkley, who, though undoubtedly a baron, his ancestors having been summoned from the earliest date of writs, put himself on his trial in parliament, by twelve knights of the county of Gloucester. Rot. Parl. vol. ii. p. 53; Rymer, t. iv. p. 734.
[g]Madox, Baronia Anglica, p. 42 and 58; West's Inquiry, p. 28, 33. That a baron could only be tried by his fellow barons was probably a rule as old as the trial per pais of a commoner. In 4 E. III. Sir Simon Bereford having been accused before the lords in parliament of aiding and advising Mortimer in his treasons, they declared with one voice that he was not their peer; wherefore they were not bound to judge him as a peer of the land; but inasmuch as it was notorious that he had been concerned in usurpation of royal powers and murder of the liege lord (as they styled Edward II.), the lords, as judges of parliament, by assent of the king in parliament, awarded and adjudged him to be hanged. A like sentence with a like protestation was passed on Mautravers and Gournay. There is a very remarkable anomaly in the case of Lord Berkley, who, though undoubtedly a baron, his ancestors having been summoned from the earliest date of writs, put himself on his trial in parliament, by twelve knights of the county of Gloucester. Rot. Parl. vol. ii. p. 53; Rymer, t. iv. p. 734.
[h]Prynne, p. 142, &c.; West's Inquiry.
[h]Prynne, p. 142, &c.; West's Inquiry.
[i]Prynne, p. 141.
[i]Prynne, p. 141.
[k]It is worthy of observation that the spiritual peers summoned to parliament were in general considerably more numerous than the temporal. Prynne, p. 114. This appears, among other causes, to have saved the church from that sweeping reformation of its wealth, and perhaps of its doctrines, which the commons were thoroughly inclined to make under Richard II. and Henry IV. Thus the reduction of the spiritual lords by the dissolution of monasteries was indispensably required to bring the ecclesiastical order into due subjection to the state.
[k]It is worthy of observation that the spiritual peers summoned to parliament were in general considerably more numerous than the temporal. Prynne, p. 114. This appears, among other causes, to have saved the church from that sweeping reformation of its wealth, and perhaps of its doctrines, which the commons were thoroughly inclined to make under Richard II. and Henry IV. Thus the reduction of the spiritual lords by the dissolution of monasteries was indispensably required to bring the ecclesiastical order into due subjection to the state.
[m]Perhaps it can hardly be said that the king's prerogative compelled the party summoned, not being a tenant by barony, to take his seat. But though several spiritual persons appear to have been discharged from attendance on account of their holding nothing by barony, as has been justly observed, yet there is, I believe, no instance of any layman's making such an application. The terms of the ancient writ of summons, however, in fide ethomagioquibus nobis tenemini, afford a presumption that a feudal tenure was, in construction of law, the basis of every lord's attendance in parliament. This form was not finally changed to the present, in fide etligeantiâ, till the 46th of Edw. III. Prynne's first Register, p. 206.
[m]Perhaps it can hardly be said that the king's prerogative compelled the party summoned, not being a tenant by barony, to take his seat. But though several spiritual persons appear to have been discharged from attendance on account of their holding nothing by barony, as has been justly observed, yet there is, I believe, no instance of any layman's making such an application. The terms of the ancient writ of summons, however, in fide ethomagioquibus nobis tenemini, afford a presumption that a feudal tenure was, in construction of law, the basis of every lord's attendance in parliament. This form was not finally changed to the present, in fide etligeantiâ, till the 46th of Edw. III. Prynne's first Register, p. 206.
[n]Collins's Proceedings on Claims of Baronies, p. 24 and 73.
[n]Collins's Proceedings on Claims of Baronies, p. 24 and 73.
[o]Prynne speaks of "the alienation of baronies by sale, gift, or marriage, after which the new purchasers were summoned instead," as if it frequently happened. First Register, p. 239. And several instances are mentioned in the Bergavenny case (Collins's Proceedings, p. 113) where, land-baronies having been entailed by the owners on their heirs male, the heirs general have been excluded from inheriting the dignity.
[o]Prynne speaks of "the alienation of baronies by sale, gift, or marriage, after which the new purchasers were summoned instead," as if it frequently happened. First Register, p. 239. And several instances are mentioned in the Bergavenny case (Collins's Proceedings, p. 113) where, land-baronies having been entailed by the owners on their heirs male, the heirs general have been excluded from inheriting the dignity.
[p]Prynne's first Register, p. 237. This must be understood to mean that no new families were summoned; for the descendants of some who are not supposed to have held land-baronies may constantly be found in later lists. [NoteIX.]
[p]Prynne's first Register, p. 237. This must be understood to mean that no new families were summoned; for the descendants of some who are not supposed to have held land-baronies may constantly be found in later lists. [NoteIX.]