Appropriation of supplies.
2. The right of granting supplies would have been very incomplete, had it not been accompanied with that of directing their application. The principle of appropriating public moneys began, as we have seen, in the minority of Richard; and was among the best fruits of that period. It was steadily maintained under the new dynasty. The parliament of 6 H. IV. granted two fifteenths and two tenths, with a tax on skins and wool, on condition that it should be expended in the defence of the kingdom, and not otherwise, as Thomas lord Furnival and Sir John Pelham, ordained treasurers of war for this parliament, to receive the said subsidies, shall account and answer to the commons at the next parliament. These treasurers were sworn in parliament to execute their trusts.[p]A similar precaution was adopted in the next session.[q]
Attempt to make supply depend on redress of grievances.
3. The commons made a bold attempt in the second year of Henry IV. to give the strongest security to their claims of redress, by inverting the usual course of parliamentary proceedings. It was usual to answer their petitions on the last day of the session, which put an end to all further discussionupon them, and prevented their making the redress of grievances a necessary condition of supply. They now requested that an answer might be given before they made their grant of subsidy. This was one of the articles which Richard II.'s judges had declared it high treason to attempt. Henry was not inclined to make a concession which would virtually have removed the chief impediment to the ascendency of parliament. He first said that he would consult with the lords, and answer according to their advice. On the last day of the session the commons were informed that "it had never been known in the time of his ancestors that they should have their petitions answered before they had done all their business in parliament, whether of granting money or any other concern; wherefore the king will not alter the good customs and usages of ancient times."[r]
Notwithstanding the just views these parliaments appear generally to have entertained of their power over the public purse, that of the third of Henry V. followed a precedent from the worst times of Richard II., by granting the king a subsidy on wool and leather during his life.[s]This, an historian tells us, Henry IV. had vainly laboured to obtain;[t]but the taking of Harfleur intoxicated the English with new dreams of conquest in France, which their good sense and constitutional jealousy were not firm enough to resist. The continued expenses of the war, however, prevented this grant from becoming so dangerous as it might have been in a season of tranquillity. Henry V., like his father, convoked parliament almost in every year of his reign.
Legislative rights of the commons established.
4. It had long been out of all question that the legislature consisted of the king, lords, and commons; or, in stricter language, that the king could not make or repeal statutes without the consent of parliament. But this fundamental maxim was still frequently defeated by various acts of evasion or violence; which, though protested against as illegal, it was a difficult task to prevent. The king sometimes exerted a power of suspending the observance of statutes, as in the ninth of Richard II., when a petitionthat all statutes might be confirmed is granted, with an exception as to one passed in the last parliament, forbidding the judges to take fees, or give counsel in cases where the king was a party; which, "because it was too severe and needs declaration, the king would have of no effect till it should be declared in parliament."[u]The apprehension of the dispensing prerogative and sense of its illegality are manifested by the wary terms wherein the commons, in one of Richard's parliaments, "assent that the king make such sufferance respecting the statute of provisors as shall seem reasonable to him, so that the said statute be not repealed; and, moreover, that the commons may disagree thereto at the next parliament, and resort to the statute;" with a protestation that this assent, which is a novelty and never done before, shall not be drawn into precedent; praying the king that this protestation may be entered on the roll of parliament.[x]A petition, in one of Henry IV.'s parliaments, to limit the number of attorneys, and forbid filazers and prothonotaries from practising, having been answered favourably as to the first point, we find a marginal entry in the roll that the prince and council had respited the execution of this act.[y]
Dispensing power of the crown.
The dispensing power, as exercised in favour of individuals, is quite of a different character from this general suspension of statutes, but indirectly weakens the sovereignty of the legislature. This power was exerted, and even recognised, throughout all the reigns of the Plantagenets. In the first of Henry V. the commons pray that the statute for driving aliens out of the kingdom be executed. The king assents, saving his prerogative and his right of dispensing with it when he pleased. To which the commons replied that their intention was never otherwise, nor, by God's help, ever should be. At the same time one Rees ap Thomas petitions the king to modify or dispense with the statute prohibiting Welchmen from purchasing lands in England, or the English towns inWales; which the king grants. In the same parliament the commons pray that no grant or protection be made to any one in contravention of the statute of provisors, saving the king's prerogative. He merely answers, "Let the statutes be observed:" evading any allusion to his dispensing power.[z]
It has been observed, under the reign of Edward III., that the practice of leaving statutes to be drawn up by the judges, from the petition and answer jointly, after a dissolution of parliament, presented an opportunity of falsifying the intention of the legislature, whereof advantage was often taken. Some very remarkable instances of this fraud occurred in the succeeding reigns.
An ordinance was put upon the roll of parliament, in the fifth of Richard II., empowering sheriffs of counties to arrest preachers of heresy and their abettors, and detain them in prison till they should justify themselves before the church. This was introduced into the statutes of the year; but the assent of lords and commons is not expressed. In the next parliament the commons, reciting this ordinance, declare that it was never assented to or granted by them, but what had been proposed in this matter was without their concurrence (that is, as I conceive, had been rejected by them), and pray that this statute be annulled; for it was never their intent to bind themselves or their descendants to the bishops more than their ancestors had been bound in times past. The king returned an answer, agreeing to this petition. Nevertheless the pretended statute was untouched, and remains still among our laws;[a]unrepealed, except by desuetude, and by inference from the acts of much later times.
This commendable reluctance of the commons to let the clergy forge chains for them produced, as there is much appearance, a similar violation of their legislative rights in the next reign. The statute against heresy in the second of Henry IV. is not grounded upon anypetition of the commons, but only upon one of the clergy. It is said to be enacted by consent of the lords, but no notice is taken of the lower house in the parliament roll, though the statute reciting the petition asserts the commons to have joined in it.[b]The petition and the statute are both in Latin, which is unusual in the laws of this time. In a subsequent petition of the commons this act is styled "the statute made in the second year of your majesty's reign at the request of the prelates and clergy of your kingdom;" which affords a presumption that it had no regular assent of parliament.[c]And the spirit of the commons during this whole reign being remarkably hostile to the church, it would have been hardly possible to obtain their consent to so penal a law against heresy. Several of their petitions seem designed indirectly to weaken its efficacy.[d]
These infringements of their most essential right were resisted by the commons in various ways, according to the measure of their power. In the fifth of Richard II. they request the lords to let them see a certain ordinance before it is engrossed.[e]At another time they procured some of their own members, as well as peers, to be present at engrossing the roll. At length they spoke out unequivocally in a memorable petition, which, besides its intrinsic importance, is deserving of notice as the earliest instance in which the house of commons adopted the English language. I shall present its venerable orthography without change.
"Oure soverain lord, youre humble and trewe lieges that ben come for the comune of youre lond bysechyn onto youre rizt riztwesnesse, That so as hit hath ever be thair libte and fredom, that thar sholde no statut no lawe be made offlasse than they yaf therto their assent; consideringe that the comune of youre lond, the whiche thatis, and ever hath be, a membre of youre parlemente, ben as well assenters as petitioners, that fro this tyme foreward, by compleynte of the comune of any myschief axknyge remedie by mouthe of their speker for the comune, other ellys by petition writen, that ther never be no lawe made theruppon, and engrossed as statut and lawe, nother by addicions, nother by diminucions, by no manner of terme ne termes, the whiche that sholde chaunge the sentence, and the entente axked by the speker mouthe, or the petitions beforesaid yeven up yn writyng by the manere forsaid, withoute assent of the forsaid comune. Consideringe, oure soverain lord, that it is not in no wyse the entente of youre comunes, zif yet be so that they axke you by spekyng, or by writyng, two thynges or three, or as manye as theym lust: But that ever it stande in the fredom of youre hie regalie, to graunte whiche of thoo that you lust, and to werune the remanent.
"The kyng of his grace especial graunteth that fro hensforth nothyng be enacted to the peticions of his comune that be contrarie of hir askyng, wharby they shuld be bounde withoute their assent. Savyng alwey to our liege lord his real prerogatif, to graunte and denye what him lust of their petitions and askynges aforesaid."[f]
Notwithstanding the fulness of this assent to so important a petition we find no vestige of either among the statutes, and the whole transaction is unnoticed by those historians who have not looked into our original records. If the compilers of the statute-roll were able to keep out of it the very provision that was intended to check their fraudulent machinations, it was in vain to hope for redress without altering the established practice in this respect; and indeed, where there was no design to falsify the roll it was impossible to draw up statutes which should be in truth the acts of the whole legislature, so long as the king continued to grant petitions in part, and to engraft new matter upon them. Such wasstill the case till the commons hit upon an effectual expedient for screening themselves against these encroachments, which has lasted without alteration to the present day. This was the introduction of complete statutes under the name of bills, instead of the old petitions; and these containing the royal assent and the whole form of a law, it became, though not quite immediately,[g]a constant principle that the king must admit or reject them without qualification. This alteration, which wrought an extraordinary effect on the character of our constitution, was gradually introduced in Henry VI.'s reign.[h]
From the first years of Henry V., though not, I think, earlier, the commons began to concern themselves with the petitions of individuals to the lords or council. The nature of the jurisdiction exercised by the latter will be treated more fully hereafter; it is only necessary to mention in this place that many of the requests preferred to them were such as could not be granted without transcending the boundaries of law. A just inquietude as to the encroachments of the king's council had long been manifested by the commons; and finding remonstrances ineffectual, they took measures for preventing such usurpations of legislative power by introducing their own consent to private petitions. These were now presented by the hands of the commons, and in very many instancespassed in the form of statutes with the express assent of all parts of the legislature. Such was the origin of private bills, which occupy the greater part of the rolls in Henry V. and VI.'s parliament. The commons once made an ineffectual endeavour to have their consent to all petitions presented to the council in parliament rendered necessary by law; if I rightly apprehend the meaning of the roll in this place, which seems obscure or corrupt.[i]
Interference of parliament with the royal expenditure.
5. If the strength of the commons had lain merely in the weakness of the crown, it might be inferred that such harassing interference with the administration of affairs as the youthful and frivolous Richard was compelled to endure would have been sternly repelled by his experienced successor. But, on the contrary, the spirit of Richard might have rejoiced to see that his mortal enemy suffered as hard usage at the hands of parliament as himself. After a few years the government of Henry became extremely unpopular. Perhaps his dissension with the great family of Percy, which had placed him on the throne, and was regarded with partiality by the people,[k]chiefly contributed to this alienation of their attachment. The commons requested, in the fifth of his reign, that certain persons might be removed from the court; the lords concurred in displacing four of these, one being the king's confessor. Henry came down to parliament and excused these four persons, as knowing no special cause why they should be removed; yet, well understanding that what the lords and commons should ordain would be for his and his kingdom's interest, and therefore anxious to conform himself to their wishes, consented to the said ordinance, and charged the persons in question to leave his palace; adding, that he would do as much by any other about his person whom he should find to have incurred the ill affection of his people.[m]It was in the same session that the archbishop of Canterbury was commanded to declare before the lords the king's intention respecting his administration; allowing that some things had been done amiss in his court andhousehold; and therefore, wishing to conform to the will of God and laws of the land, protested that he would let in future no letters of signet or privy seal go in disturbance of law, beseeched the lords to put his household in order, so that every one might be paid, and declared that the money granted by the commons for the war should be received by treasurers appointed in parliament, and disbursed by them for no other purpose, unless in case of rebellion. At the request of the commons he named the members of his privy council; and did the same, with some variation of persons, two years afterwards. These, though not nominated with the express consent, seem to have had the approbation of the commons, for a subsidy is granted in 7 H. IV., among other causes, for "the great trust that the commons have in the lords lately chosen and ordained to be of the king's continual council, that there shall be better management than heretofore."[n]
In the sixth year of Henry the parliament, which Sir E. Coke derides as unlearned because lawyers were excluded from it, proceeded to a resumption of grants and a prohibition of alienating the ancient inheritance of the crown without consent of parliament, in order to ease the commons of taxes, and that the king might live on his own.[o]This was a favourite though rather chimerical project. In a later parliament it was requested that the king would take his council's advice how to keep within his own revenue; he answered that he would willingly comply as soon as it should be in his power.[p]
But no parliament came near, in the number and boldness of its demands, to that held in the eighth year of Henry IV. The commons presented thirty-one articles, none of which the king ventured to refuse, though pressing very severely upon his prerogative. He was to name sixteen counsellors, by whose advice he was solely to be guided, none of them to be dismissed without conviction of misdemeanor. The chancellor and privy seal to pass no grants or other matter contrary to law. Any persons about the court stirring up the king or queen's minds against their subjects, and duly convicted thereof, to lose their offices and be fined. The king's ordinary revenuewas wholly appropriated to his household and the payment of his debts; no grant of wardship or other profit to be made thereout, nor any forfeiture to be pardoned. The king, "considering the wise government of other Christian princes, and conforming himself thereto," was to assign two days in the week for petitions, "it being an honourable and necessary thing that his lieges, who desired to petition him, should be heard." No judicial officer, nor any in the revenue or household, to enjoy his place for life or term of years. No petition to be presented to the king, by any of his household, at times when the council were not sitting. The council to determine nothing cognizable at common law, unless for a reasonable cause and with consent of the judges. The statutes regulating purveyance were affirmed—abuses of various kinds in the council and in courts of justice enumerated and forbidden—elections of knights for counties put under regulation. The council and officers of state were sworn to observe the common law and all statutes, those especially just enacted.[q]
It must strike every reader that these provisions were of themselves a noble fabric of constitutional liberty, and hardly perhaps inferior to the petition of right under Charles I. We cannot account for the submission of Henry to conditions far more derogatory than ever were imposed on Richard, because the secret politics of his reign are very imperfectly understood. Towards its close he manifested more vigour. The speaker, Sir Thomas Chaucer, having made the usual petition for liberty of speech, the king answered that he might speak as others had done in the time of his (Henry's) ancestors, and his own, but not otherwise; for he would by no means have any innovation, but be as much at his liberty as any of his ancestors had ever been. Some time after he sent a message to the commons, complaining of a law passed at the last parliament infringing his liberty and prerogative, which he requested their consent to repeal. To this the commons agreed, and received the king's thanks, who declared at the same time that he would keep as much freedom and prerogative as any of his ancestors. It does not appear what was the particular subject of complaint;but there had been much of the same remonstrating spirit in the last parliament that was manifested on preceding occasions. The commons, however, for reasons we cannot explain, were rather dismayed. Before their dissolution, they petition the king, that, whereas he was reported to be offended at some of his subjects in this and in the preceding parliament, he would openly declare that he held them all for loyal subjects. Henry granted this "of his special grace;" and thus concluded his reign more triumphantly with respect to his domestic battles than he had gone through it.[r]
Henry V. His popularity.
Power deemed to be ill gotten is naturally precarious; and the instance of Henry IV. has been well quoted to prove that public liberty flourishes with a bad title in the sovereign. None of our kings seem to have been less beloved; and indeed he had little claim to affection. But what men denied to the reigning king they poured in full measure upon the heir of his throne. The virtues of the prince of Wales are almost invidiously eulogized by those parliaments who treat harshly his father;[s]and these records afford a strong presumption that some early petulance or riot has been much exaggerated by the vulgar minds of our chroniclers. One can scarcely understand at least that a prince who was three years engaged in quelling the dangerous insurrection of Glendower, and who in the latter time of his father's reign presided at the council, was so lost in a cloud of low debauchery as common fame represents.[t]Loved he certainly was throughout his life, as so intrepid, affable, and generous a temper well deserved; and this sentiment was heightened to admiration by successes still more rapid and dazzling than those of Edward III. During his reign there scarcely appears any vestige of dissatisfaction in parliament—a circumstance very honourable, whether we ascribe it to the justice of his administration or to the affection of his people. Perhaps two exceptions, though they are rather one in spirit, might be made: the first, a petition to the duke of Gloucester, then holding parliament as guardianof England, that he would move the king and queen to return, as speedily as might please them, in relief and comfort of the commons;[u]the second, a request that their petitions might not be sent to the king beyond sea, but altogether determined "within this kingdom of England, during this parliament," and that this ordinance might be of force in all future parliaments to be held in England.[x]This prayer, to which the guardian declined to accede, evidently sprang from the apprehensions, excited in their minds by the treaty of Troyes, that England might become a province of the French crown, which led them to obtain a renewal of the statute of Edward III., declaring the independence of this kingdom.[y]
Parliament consulted on all public affairs.
It has been seen already that even Edward III. consulted his parliament upon the expediency of negociations for peace, though at that time the commons had not acquired boldness enough to tender their advice. In Richard II.'s reign they answered to a similar proposition with a little more confidence, that the dangers each way were so considerable they dared not decide, though an honourable peace would be the greatest comfort they could have, and concluded by hoping that the king would not engage to do homage for Calais or the conquered country.[z]The parliament of the tenth of his reign was expressly summoned in order to advise concerning the king's intended expedition beyond sea—a great council, which had previously been assembled at Oxford, having declared their incompetence to consent to this measure without the advice of parliament.[a]Yet a few years afterwards, on a similar reference, the commons rather declined to give any opinion.[b]They confirmed the league of Henry V. with the emperor Sigismund;[c]and the treaty of Troyes, which was so fundamentally to change the situation of Henry and his successors, obtained, as it evidently required, the sanction of both houses of parliament.[d]These precedents conspiring with the weakness of the executive government, in the minority of Henry VI., to fling an increase of influence into the scale of the commons, they made theirconcurrence necessary to all important business both of a foreign and domestic nature. Thus commissioners were appointed to treat of the deliverance of the king of Scots, the duchesses of Bedford and Gloucester were made denizens, and mediators were appointed to reconcile the dukes of Gloucester and Burgundy, by authority of the three estates assembled in parliament.[e]Leave was given to the dukes of Bedford and Gloucester, and others in the king's behalf, to treat of peace with France, by both houses of parliament, in pursuance of an article in the treaty of Troyes, that no treaty should be set on foot with the dauphin without consent of the three estates of both realms.[f]This article was afterwards repealed.[g]
Some complaints are made by the commons, even during the first years of Henry's minority, that the king's subjects underwent arbitrary imprisonment, and were vexed by summonses before the council and by the newly-invented writ of subpœna out of chancery.[h]But these are not so common as formerly; and so far as the rolls lead us to any inference, there was less injustice committed by the government under Henry VI. and his father than at any former period. Wastefulness indeed might justly be imputed to the regency, who had scandalously lavished the king's revenue.[i]This ultimately led to an act for resuming all grants since his accession, founded upon a public declaration of the great officers of the crown that his debts amounted to 372,000l., and the annual expense of the household to 24,000l., while the ordinary revenue was not more than 5000l.[k]
Impeachments of ministers.
6. But before this time the sky had begun to darken, and discontent with the actual administration pervaded every rank. The causes of this are familiar—the unpopularity of the king's marriage with Margaret of Anjou, and her impolitic violencein the conduct of affairs, particularly the imputed murder of the people's favourite, the duke of Gloucester. This provoked an attack upon her own creature, the duke of Suffolk. Impeachment had lain still, like a sword in the scabbard, since the accession of Henry IV., when the commons, though not preferring formal articles of accusation, had petitioned the king that Justice Rickhill, who had been employed to take the former duke of Gloucester's confession at Calais, and the lords appellants of Richard II.'s last parliament, should be put on their defence before the lords.[m]In Suffolk's case the commons seem to have proceeded by bill of attainder, or at least to have designed the judgment against that minister to be the act of the whole legislature; for they delivered a bill containing articles against him to the lords, with a request that they would pray the king's majesty to enact that bill in parliament, and that the said duke might be proceeded against upon the said articles in parliament according to the law and custom of England. These articles contained charges of high treason, chiefly relating to his conduct in France, which, whether treasonable or not, seems to have been grossly against the honour and advantage of the crown. At a later day the commons presented many other articles of misdemeanor. To the former he made a defence, in presence of the king as well as the lords both spiritual and temporal; and indeed the articles of impeachment were directly addressed to the king, which gave him a reasonable pretext to interfere in the judgment. But from apprehension, as it is said, that Suffolk could not escape conviction upon at least some part of these charges, Henry anticipated with no slight irregularity the course of legal trial, and, summoning the peers into a private chamber, informed the duke of Suffolk, by mouth of his chancellor, that, inasmuch as he had not put himself upon his peerage, but submitted wholly to the royal pleasure, the king, acquitting him of the first articles containing matter of treason, by his own advice and not that of the lords, nor by way of judgment, not being in a place where judgment could be delivered, banished him for five years from his dominions. The lords then present besoughtthe king to let their protest appear on record, that neither they nor their posterity might lose their rights of peerage by this precedent. It was justly considered as an arbitrary stretch of prerogative, in order to defeat the privileges of parliament and screen a favourite minister from punishment. But the course of proceeding by bill of attainder, instead of regular impeachment, was not judiciously chosen by the commons.[n]
Privilege of parliament.
7. Privilege of parliament, an extensive and singular branch of our constitutional law, begins to attract attention under the Lancastrian princes. It is true indeed that we can trace long before by records, and may infer with probability as to times whose records have not survived, one considerable immunity—a freedom from arrest for persons transacting the king's business in his national council.[o]Several authorities may be found in Mr. Hatsell's Precedents; of which one, in the 9th of Edward II., is conclusive.[p]But in those rude times members of parliament were not always respected by the officers executing legal process, and still less by the violators of law. After several remonstrances, which the crown had evaded,[q]the commons obtained the statute 11 Henry VI. c. 11, for the punishment of such as assault any on their way to the parliament, giving double damages to the party.[r]They had more difficulty in establishing, notwithstanding the old precedents in their favour, an immunity from all criminal process except in charges of treason, felony, and breach of the peace, which is their present measure of privilege. The truth was, that, with a right pretty clearly recognised, as is admitted by the judges in Thorp's case, the house of commons had no regular compulsory process at their command. In the cases of Lark, servant of a member, in the 8th of Henry VI.,[s]and of Clerke, himself a burgess, in the 39th of the same king,[t]it was thought necessary to effect theirrelease from a civil execution by special acts of parliament. The commons, in a former instance, endeavoured to make the law general that no members nor their servants might be taken except for treason, felony, and breach of peace; but the king put a negative upon this part of their petition.
The most celebrated, however, of these early cases of privilege is that of Thomas Thorp, speaker of the commons in 31 Henry VI. This person, who was moreover a baron of the exchequer, had been imprisoned on an execution at suit of the duke of York. The commons sent some of their members to complain of a violation of privilege to the king and lords in parliament, and to demand Thorp's release. It was alleged by the duke of York's counsel that the trespass done by Thorp was since the beginning of the parliament, and the judgment thereon given in time of vacation, and not during the sitting. The lords referred the question to the judges, who said, after deliberation, that "they ought not to answer to that question, for it hath not be used aforetyme that the judges should in any wise determine the privilege of this high court of parliament; for it is so high and so mighty in his nature that it may make law, and that that is law it may make no law; and the determination and knowledge of that privilege belongeth to the lords of the parliament, and not to the justices." They went on, however, after observing that a general writ of supersedeas of all processes upon ground of privilege had not been known, to say that, "if any person that is a member of this high court of parliament be arrested in such cases as be not for treason, or felony, or surety of the peace, or for a condemnation had before the parliament, it is used that all such persons should be released of such arrests and make an attorney, so that they may have their freedom and liberty freely to intend upon the parliament."
Notwithstanding this answer of the judges, it was concluded by the lords that Thorp should remain in prison, without regarding the alleged privilege; and the commons were directed in the king's name to proceed "with all goodly haste and speed" to the election of a new speaker. It is curious to observe that the commons, forgetting their grievances, or content to drop them,made such haste and speed according to this command, that they presented a new speaker for approbation the next day.[u]
This case, as has been strongly said, was begotten by the iniquity of the times. The state was verging fast towards civil war; and Thorp, who afterwards distinguished himself for the Lancastrian cause, was an inveterate enemy of the duke of York. That prince seems to have been swayed a little from his usual temper in procuring so unwarrantable a determination. In the reign of Edward IV. the commons claimed privilege against any civil suit during the time of their session; but they had recourse, as before, to a particular act of parliament to obtain a writ of supersedeas in favour of one Atwell, a member, who had been sued. The present law of privilege seems not to have been fully established, or at least effectually maintained, before the reign of Henry VIII.[x]
No privilege of the commons can be so fundamental as liberty of speech. This is claimed at the opening of every parliament by their speaker, and could never be infringed without shaking the ramparts of the constitution. Richard II.'s attack upon Haxey has been already mentioned as a flagrant evidence of his despotic intentions. No other case occurs until the 33rd year of Henry VI., when Thomas Young, member for Bristol, complained to the commons, that, "for matters by him showed in the house accustomed for the commons in the said parliaments, he was therefore taken, arrested, and rigorously in open wise led to the Tower of London, and there grievously in great duress long time imprisoned against the said freedom and liberty;" with much more to the like effect. The commons transmitted this petition to the lords, and the king "willed that the lords of his council do and provide for the said suppliant as in their discretions shall be thought convenient and reasonable." This imprisonment of Young, however, had happened six years before, in consequence of a motion made by him that, the king then having no issue, the duke of York might be declared heir-apparent to the crown. In the present session, when the duke was protector, he thought it well-timed to prefer his claim to remuneration.[y]
There is a remarkable precedent in the 9th of Henry IV., and perhaps the earliest authority for two eminent maxims of parliamentary law—that the commons possess an exclusive right of originating money bills, and that the king ought not to take notice of matters pending in parliament. A quarrel broke out between the two houses upon this ground; and as we have not before seen the commons venture to clash openly with their superiors, the circumstance is for this additional reason worthy of attention. As it has been little noticed, I shall translate the whole record.
"Friday the second day of December, which was the last day of the parliament, the commons came before the king and the lords in parliament, and there, by command of the king, a schedule of indemnity touching a certain altercation moved between the lords and commons was read; and on this it was commanded by our said lord the king that the said schedule should be entered of record in the roll of parliament; of which schedule the tenor is as follows: Be it remembered, that on Monday the 21st day of November, the king our sovereign lord being in the council-chamber in the abbey of Gloucester,[z]the lords spiritual and temporal for this present parliament assembled being then in his presence, a debate took place among them about the state of the kingdom, and its defence to resist the malice of the enemies who on every side prepare to molest the said kingdom and its faithful subjects, and how no man can resist this malice, unless, for the safeguard and defence of his said kingdom, our sovereign lord the king has some notable aid and subsidy granted to him in his present parliament. And therefore it was demanded of the said lords by way of question what aid would be sufficient and requisite in these circumstances? To which question it was answered by the said lords severally, that, considering the necessity of the king on one side, and the poverty of his people on the other, no less aid could be sufficient than one tenth and a half from cities and towns, and one fifteenth and a half from all other lay persons; and, besides, to grant a continuance of the subsidy on wool, woolfells, andleather, and of three shillings on the tun (of wine), and twelve pence on the pound (of other merchandise), from Michaelmas next ensuing for two years thenceforth. Whereupon, by command of our said lord the king, a message was sent to the commons of this parliament to cause a certain number of their body to come before our said lord the king and the lords, in order to hear and report to their companions what they should be commanded by our said lord the king. And upon this the said commons sent into the presence of our said lord the king and the said lords twelve of their companions; to whom, by command of our said lord the king, the said question was declared, with the answer by the said lords severally given to it. Which answer it was the pleasure of our said lord the king that they should report to the rest of their fellows, to the end that they might take the shortest course to comply with the intention of the said lords. Which report being thus made to the said commons, they were greatly disturbed at it, saying and asserting it to be much to the prejudice and derogation of their liberties. And after that our said lord the king had heard this, not willing that anything should be done at present, or in time to come, that might anywise turn against the liberty of the estate for which they are come to parliament, nor against the liberties of the said lords, wills and grants and declares, by the advice and consent of the said lords, as follows: to wit, that it shall be lawful for the lords to debate together in this present parliament, and in every other for time to come, in the king's absence, concerning the condition of the kingdom, and the remedies necessary for it. And in like manner it shall be lawful for the commons, on their part, to debate together concerning the said condition and remedies. Provided always that neither the lords on their part, nor the commons on theirs, do make any report to our said lord the king of any grant granted by the commons, and agreed to by the lords, nor of the communications of the said grant, before that the said lords and commons are of one accord and agreement in this matter, and then in manner and form accustomed—that is to say, by the mouth of the speaker of the said commons for the time being—to the end that the said lords and commons may have what they desire (avoir puissent leur gree) of oursaid lord the king. Our said lord the king willing moreover, by the consent of the said lords, that the communication had in this present parliament as above be not drawn into precedent in time to come, nor be turned to the prejudice or derogation of the liberty of the estate for which the said commons are now come, neither in this present parliament nor in any other time to come. But wills that himself and all the other estates should be as free as they were before. Also, the said last day of parliament, the said speaker prayed our said lord the king, on the part of the said commons, that he would grant the said commons that they should depart in as great liberty as other commons had done before. To which the king answered that this pleased him well, and that at all times it had been his desire."[a]
Every attentive reader will discover this remarkable passage to illustrate several points of constitutional law. For hence it may be perceived—first, that the king was used in those times to be present at debates of the lords, personally advising with them upon the public business; which also appears by many other passages on record; and this practice, I conceive, is not abolished by the king's present declaration, save as to grants of money, which ought to be of the free will of parliament, and without that fear or influence which the presence of so high a person might create: secondly, that it was already the established law of parliament that the lords should consent to the commons' grant, and not the commons to the lords'; since it is the inversion of this order whereof the commons complain, and it is said expressly that grants are made by the commons, and agreed to by the lords: thirdly, that the lower house of parliament is not, in proper language, an estate of the realm, but rather the image and representative of the commons of England; who, being the third estate, with the nobility and clergy make up and constitute the people of this kingdom and liege subjects of the crown.[b]
At the next meeting of parliament, in allusion probably to this disagreement between the houses, the king told them that the states of parliament were come together for the common profit of the king and kingdom, and for unanimity's sake and general consent; and therefore he was sure the commons would not attempt nor say anything but what should be fitting and conducive to unanimity; commanding them to meet together and communicate for the public service.[c]
It was not only in money bills that the originating power was supposed to reside in the commons. The course of proceedings in parliament, as has been seen, from the commencement at least of Edward III.'s reign,was that the commons presented petitions, which the lords, by themselves, or with the assistance of the council, having duly considered, the sanction of the king was notified or withheld. This was so much according to usage, that, on one occasion, when the commons requested the advice of the other house on a matter before them, it was answered that the ancient custom and form of parliament had ever been for the commons to report their own opinion to the king and lords, and not to the contrary; and the king would have the ancient and laudable usages of parliament maintained.[d]It is singular that in the terror of innovation the lords did not discover how materially this usage of parliament took off from their own legislative influence. The rule, however, was not observed in succeeding times; bills originated indiscriminately in either house; and indeed some acts of Henry V., which do not appear to be grounded on any petition, may be suspected, from the manner of their insertion in the rolls of parliament, to have been proposed on the king's part to the commons.[e]But there is one manifest instance in the 18th of Henry VI., where the king requested the commons to give their authority to such regulations[f]ashis council might provide for redressing the abuse of purveyance; to which they assented.
If we are to choose constitutional precedents from seasons of tranquillity rather than disturbance, which surely is the only means of preserving justice or consistency, but little intrinsic authority can be given to the following declaration of parliamentary law in the 11th of Richard II.: "In this parliament (the roll says) all the lords as well spiritual and temporal there present claimed as their liberty and privilege, that the great matters moved in this parliament, and to be moved in other parliaments for time to come, touching the peers of the land, should be treated, adjudged, and debated according to the course of parliament, and not by the civil law nor the common law of the land, used in the other lower courts of the kingdom; which claim, liberty, and privileges, the king graciously allowed and granted them in full parliament."[g]It should be remembered that this assertion of paramount privilege was made in very irregular times, when the king was at the mercy of the duke of Gloucester and his associates, and that it had a view to the immediate object of justifying their violent proceedings against the opposite party, and taking away the restraint of the common law. It stands as a dangerous rock to be avoided, not a lighthouse to guide us along the channel. The law of parliament, as determined by regular custom, is incorporated into our constitution; but not so as to warrant an indefinite, uncontrollable assumption of power in any case, least of all in judicial procedure, where the form and the essence of justice are inseparable from each other. And, in fact, this claim of the lords, whatever gloss Sir E. Coke may put upon it, was never intended to bear any relation to the privileges of the lower house. I should not, perhaps, have noticed this passage so strongly if it had notbeen made the basis of extravagant assertions as to the privileges of parliament;[h]the spirit of which exaggerations might not be ill adapted to the times wherein Sir E. Coke lived, though I think they produced at several later periods no slight mischief, some consequences of which we may still have to experience.