View of the State of Europe during the Middle Ages Part 3

[Sidenote: Subsequent revolution.]

These answers, perhaps extorted by menaces, as all the judges, except Tresilian, protested before the next parliament, were for the most part servile and unconst.i.tutional. The indignation which they excited, and the measures successfully taken to withstand the king's designs, belong to general history; but I shall pa.s.s slightly over that season of turbulence, which afforded no legitimate precedent, to our const.i.tutional annals. Of the five lords appellants, as they were called, Gloucester, Derby, Nottingham, Warwick, and Arundel, the three former, at least, have little claim to our esteem; but in every age it is the sophism of malignant and peevish men to traduce the cause of freedom itself, on account of the interested motives by which its ostensible advocates have frequently been actuated. The parliament, who had the country thoroughly with them, acted no doubt honestly, but with an inattention to the rules of law, culpable indeed, yet from which the most civilized of their successors, in the heat of pa.s.sion and triumph, have scarcely been exempt. Whether all with whom they dealt severely, some of them apparently of good previous reputation, merited such punishment, is more than, upon uncertain evidence, a modern writer can profess to decide.[162]

Notwithstanding the death or exile of all Richard's favourites, and the oath taken not only by parliament, but by every cla.s.s of the people, to stand by the lords appellants, we find him, after about a year, suddenly annihilating their pretensions, and s.n.a.t.c.hing the reins again without obstruction. The secret cause of this event is among the many obscurities that attend the history of his reign. It was conducted with a spirit and activity which broke out two or three times in the course of his imprudent life; but we may conjecture that he had the advantage of disunion among his enemies. For some years after this the king's administration was prudent. The great seal, which he took away from archbishop Arundel, he gave to Wykeham bishop of Winchester, another member of the reforming commission, but a man of great moderation and political experience. Some time after he restored the seal to Arundel, and reinstated the duke of Gloucester in the council. The duke of Lancaster, who had been absent during the transactions of the tenth and eleventh years of the king, in prosecution of his Castilian war, formed a link between the parties, and seems to have maintained some share of public favour.

[Sidenote: Greater harmony between the king and parliament.]

There was now a more apparent harmony between the court and the parliament. It seems to have been tacitly agreed that they should not interfere with the king's household expenses; and they gratified him in a point where his honour had been most wounded, declaring his prerogative to be as high and unimpaired as that of his predecessors, and repealing the pretended statute by virtue of which Edward II. was said to have been deposed.[163]. They were provident enough, however, to grant conditional subsidies, to be levied only in case of a royal expedition against the enemy; and several were accordingly remitted by proclamation, this condition not being fulfilled. Richard never ventured to recall his favourites, though he testified his unabated affection for Vere by a pompous funeral. Few complaints, unequivocally affecting the ministry, were presented by the commons. In one parliament the chancellor, treasurer, and counsel resigned their offices, submitting themselves to its judgment in case any matter of accusation should be alleged against them. The commons, after a day's deliberation, probably to make their approbation appear more solemn, declared in full parliament that nothing amiss had been found in the conduct of these ministers, and that they held them to have faithfully discharged their duties. The king reinstated them accordingly, with a protestation that this should not be made a precedent, and that it was his right to change his servants at pleasure.[164]

[Sidenote: Disunion among some leading peers.]

But this summer season was not to last for ever. Richard had but dissembled with those concerned in the transactions of 1388, none of whom he could ever forgive. These lords in lapse of time were divided among each other. The earls of Derby and Nottingham were brought into the king's interest. The earl of Arundel came to an open breach with the duke of Lancaster, whose pardon he was compelled to ask for an unfounded accusation in parliament.[165] Gloucester's ungoverned ambition, elated by popularity, could not brook the ascendency of his brother Lancaster, who was much less odious to the king. He had constantly urged and defended the concession of Guienne to this prince to be held for life, reserving only his liege homage to Richard as king of France;[166] a grant as unpopular among the natives of that country as it was derogatory to the crown; but Lancaster was not much indebted to his brother for a.s.sistance which was only given in order to diminish his influence in England. The truce with France, and the king's French marriage, which Lancaster supported, were pa.s.sionately opposed by Gloucester. And the latter had given keener provocation by speaking contemptuously of that misalliance with Katherine Swineford which contaminated the blood of Plantagenet. To the parliament summoned in the 20th of Richard, one object of which was to legitimate the duke of Lancaster's antenuptial children by this lady, neither Gloucester nor Arundel would repair. There pa.s.sed in this a.s.sembly something remarkable, as it exhibits not only the arbitrary temper of the king, a point by no means doubtful, but the inefficiency of the commons to resist it without support from political confederacies of the n.o.bility.

The circ.u.mstances are thus related in the record.

[Sidenote: Richard's prosecution of Haxey.]

During the session the king sent for the lords into parliament one afternoon, and told them how he had heard of certain articles of complaint made by the commons in conference with them a few days before, some of which appeared to the king against his royalty, estate, and liberty, and commanded the chancellor to inform him fully as to this.

The chancellor accordingly related the whole matter, which consisted of four alleged grievances; namely, that sheriffs and escheators, notwithstanding a statute, are continued in their offices beyond a year;[167] that the Scottish marches were not well kept; that the statute against wearing great men's liveries was disregarded; and, lastly, that the excessive charges of the king's household ought to be diminished, arising from the mult.i.tude of bishops and of ladies who are there maintained at his cost.

Upon this information the king declared to the lords that through G.o.d's gift he is by lineal right of inheritance king of England, and will have the royalty and freedom of his crown, from which some of these articles derogate. The first pet.i.tion, that sheriffs should never remain in office beyond a year, he rejected; but, pa.s.sing lightly over the rest, took most offence that the commons, who are his lieges, should take on themselves to make any ordinance respecting his royal person or household, or those whom he might please to have about him. He enjoined therefore the lords to declare plainly to the commons his pleasure in this matter; and especially directed the duke of Lancaster to make the speaker give up the name of the person who presented a bill for this last article in the lower house.

The commons were in no state to resist this unexpected prompt.i.tude of action in the king. They surrendered the obnoxious bill, with its proposer, one Thomas Haxey, and with great humility made excuse that they never designed to give offence to his majesty, nor to interfere with his household or attendants, knowing well that such things do not belong to them, but to the king alone; but merely to draw his attention, that he might act therein as should please him best. The king forgave these pitiful suppliants; but Haxey was adjudged in parliament to suffer death as a traitor. As, however, he was a clerk,[168] the archbishop of Canterbury, at the head of the prelates, obtained of the king that his life might be spared, and that they might have the custody of his person; protesting that this was not claimed by way of right, but merely of the king's grace.[169]

[Sidenote: Arbitrary measures of the king.]

This was an open defiance of parliament, and a declaration of arbitrary power. For it would be impossible to contend that, after the repeated instances of control over public expenditure by the commons since the 50th of Edward III., this principle was novel and unauthorized by the const.i.tution, or that the right of free speech demanded by them in every parliament was not a real and indisputable privilege. The king, however, was completely successful, and, having proved the feebleness of the commons, fell next upon those he more dreaded. By a skilful piece of treachery he seized the duke of Gloucester, and spread consternation among all his party. A parliament was summoned, in which the only struggle was to outdo the king's wishes, and thus to efface their former transgressions.[170] Gloucester, who had been murdered at Calais, was attainted after his death; Arundel was beheaded, his brother the archbishop of Canterbury deposed and banished, Warwick and Cobham sent beyond sea. The commission of the tenth, the proceedings in parliament of the eleventh year of the king, were annulled. The answers of the judges to the questions put at Nottingham, which had been punished with death and exile, were p.r.o.nounced by parliament to be just and legal. It was declared high treason to procure the repeal of any judgment against persons therein impeached. Their issue male were disabled from ever sitting in parliament or holding place in council. These violent ordinances, as if the precedent they were then overturning had not shielded itself with the same sanction, were sworn to by parliament upon the cross of Canterbury, and confirmed by a national oath, with the penalty of excommunication denounced against its infringers. Of those recorded to have bound themselves by this adjuration to Richard, far the greater part had touched the same relics for Gloucester and Arundel ten years before, and two years afterwards swore allegiance to Henry of Lancaster.[171]

In the fervour of prosecution this parliament could hardly go beyond that whose acts they were annulling; and each is alike unworthy to be remembered in the way of precedent. But the leaders of the former, though vindictive and turbulent, had a concern for the public interest; and, after punishing their enemies, left the government upon its right foundation. In this all regard for liberty was extinct; and the commons set the dangerous precedent of granting the king a subsidy upon wool during his life. Their remarkable act of severity was accompanied by another, less unexampled, but, as it proved, of more ruinous tendency.

The pet.i.tions of the commons not having been answered during the session, which they were always anxious to conclude, a commission was granted for twelve peers and six commoners to sit after the dissolution, and "examine, answer, and fully determine, as well all the said pet.i.tions, and the matters therein comprised, as all other matters and things moved in the king's presence, and all things incident thereto not yet determined, as shall seem best to them."[172] The "other matters"

mentioned above were, I suppose, private pet.i.tions to the king's council in parliament, which had been frequently despatched after a dissolution.

For in the statute which establishes this commission, 21 R. II. c. 16, no powers are committed but those of examining pet.i.tions: which, if it does not confirm the charge afterwards alleged against Richard, of falsifying the parliament roll, must at least be considered as limiting and explaining the terms of the latter. Such a trust had been committed to some lords of the council eight years before, in very peaceful times; and it was even requested that the same might be done in future parliaments.[173] But it is obvious what a lat.i.tude this gave to a prevailing faction. These eighteen commissioners, or some of them (for there were who disliked the turn of affairs), usurped the full rights of the legislature, which undoubtedly were only delegated in respect of business already commenced.[174] They imposed a perpetual oath on prelates and lords for all time to come, to be taken before obtaining livery of their lands, that they would maintain the statutes and ordinances made by this parliament, or "afterwards by the lords and knights having power committed to them by the same." They declared it high treason to disobey their ordinances. They annulled the patents of the dukes of Hereford and Norfolk, and adjudged Henry Bowet, the former's chaplain, who had advised him to pet.i.tion for his inheritance, to the penalties of treason.[175] And thus, having obtained a revenue for life, and the power of parliament being notoriously usurped by a knot of his creatures, the king was little likely to meet his people again, and became as truly absolute as his ambition could require.

[Sidenote: Quarrel of the dukes of Hereford and Norfolk.]

[Sidenote: Necessity for deposing Richard II.]

It had been necessary for this purpose to subjugate the ancient n.o.bility. For the English const.i.tution gave them such paramount rights that it was impossible either to make them surrender their country's freedom, or to destroy it without their consent. But several of the chief men had fallen or were involved with the party of Gloucester. Two who, having once belonged to it, had lately plunged into the depths of infamy to ruin their former friends; were still perfectly obnoxious to the king, who never forgave their original sin. These two, Henry of Bolingbroke, earl of Derby, and Mowbray, earl of Nottingham, now dukes of Hereford and Norfolk, the most powerful of the remaining n.o.bility, were, by a singular conjuncture, thrown, as it were, at the king's feet.

Of the political mysteries which this reign affords, none is more inexplicable than the quarrel of these peers. In the parliament at Shrewsbury, in 1398, Hereford was called upon by the king to relate what had pa.s.sed between the duke of Norfolk and himself in slander of his majesty. He detailed a pretty long and not improbable conversation, in which Norfolk had a.s.serted the king's intention of destroying them both for their old offence in impeaching his ministers. Norfolk had only to deny the charge and throw his gauntlet at the accuser. It was referred to the eighteen commissioners who sat after the dissolution, and a trial by combat was awarded. But when this, after many delays, was about to take place at Coventry, Richard interfered and settled the dispute by condemning Hereford to banishment for ten years and Norfolk for life.

This strange determination, which treated both as guilty where only one could be so, seems to admit no other solution than the king's desire to rid himself of two peers whom he feared and hated at a blow. But it is difficult to understand by what means he drew the crafty Bolingbroke into his snare.[176] However this might have been, he now threw away all appearance of moderate government. The indignities he had suffered in the eleventh year of his reign were still at his heart, a desire to revenge which seems to have been the mainspring of his conduct. Though a general pardon of those proceedings had been granted, not only at the time, but in his own last parliament, he made use of them as a pretence to extort money from seventeen counties, to whom he imputed a share in the rebellion. He compelled men to confess under their seals that they had been guilty of treason, and to give blank obligations, which his officers filled up with large sums.[177] Upon the death of the duke of Lancaster, who had pa.s.sively complied throughout all these transactions, Richard refused livery of his inheritance to Hereford, whose exile implied no crime, and who had letters patent enabling him to make his attorney for that purpose during its continuance. In short, his government for nearly two years was altogether tyrannical; and, upon the same principles that cost James II. his throne, it was unquestionably far more necessary, unless our fathers would have abandoned all thought of liberty, to expel Richard II. Far be it from us to extenuate the treachery of the Percies towards this unhappy prince, or the cruel circ.u.mstances of his death, or in any way to extol either his successor or the chief men of that time, most of whom were ambitious and faithless; but after such long experience of the king's arbitrary, dissembling, and revengeful temper, I see no other safe course, in the actual state of the const.i.tution, than what the nation concurred in pursuing.

The reign of Richard II. is, in a const.i.tutional light, the most interesting part of our earlier history; and it has been the most imperfectly written. Some have misrepresented the truth through prejudice, and others through carelessness. It is only to be understood, and, indeed, there are great difficulties in the way of understanding it at all, by a perusal of the rolls of parliament, with some a.s.sistance from the contemporary historians, Walsingham, Knyghton, the anonymous biographer published by Hearne, and Froissart. These, I must remark, except occasionally the last, are extremely hostile to Richard; and although we are far from being bound to acquiesce in their opinions, it is at least unwarrantable in modern writers to sprinkle their margins with references to such authority in support of positions decidedly opposite.[178]

[Sidenote: Circ.u.mstances attending Henry IV.'s accession.]

The revolution which elevated Henry IV. to the throne was certainly so far accomplished by force, that the king was in captivity, and those who might still adhere to him in no condition to support his authority. But the sincere concurrence which most of the prelates and n.o.bility, with the ma.s.s of the people, gave to changes that could not have been otherwise effected by one so unprovided with foreign support as Henry, proves this revolution to have been, if not an indispensable, yet a national act, and should prevent our considering the Lancastrian kings as usurpers of the throne. Nothing indeed looks so much like usurpation in the whole transaction as Henry's remarkable challenge of the crown, insinuating, though not avowing, as Hume has justly animadverted upon it, a false and ridiculous t.i.tle by right line of descent, and one equally unwarrantable by conquest. The course of proceedings is worthy of notice. As the renunciation of Richard might well pa.s.s for the effect of compulsion, there was a strong reason for propping up its instability by a solemn deposition from the throne, founded upon specific charges of misgovernment. Again, as the right of dethroning a monarch was nowhere found in the law, it was equally requisite to support this a.s.sumption of power by an actual abdication. But as neither one nor the other filled up the duke of Lancaster's wishes, who was not contented with owing a crown to election, nor seemed altogether to account for the exclusion of the house of March, he devised this claim, which was preferred in the vacancy of the throne, Richard's cession, having been read and approved in parliament, and the sentence of deposition, "out of abundant caution, and to remove all scruple," solemnly pa.s.sed by seven commissioners appointed out of the several estates. "After which challenge and claim,"

says the record, "the lords spiritual and temporal, and all the estates there present, being asked, separately and together, what they thought of the said challenge and claim, the said estates, with the whole people, without any difficulty or delay, consented that the said duke should reign over them."[179] The claim of Henry, as opposed to that of the earl of March, was indeed ridiculous; but it is by no means evident that, in such cases of extreme urgency as leave no security for the common weal but the deposition of a reigning prince, there rests any positive obligation upon the estates of the realm to fill his place with the nearest heir. A revolution of this kind seems rather to defeat and confound all prior t.i.tles; though in the new settlement it will commonly be prudent, as well as equitable, to treat them with some regard. Were this otherwise it would be hard to say why William III. reigned to the exclusion of Anne, or even of the Pretender, who had surely committed no offence at that time; or why (if such indeed be the true construction of the Act of Settlement) the more distant branches of the royal stock, descendants of Henry VII. and earlier kings, have been cut off from their hope of succession by the restriction to the heirs of the princess Sophia.

In this revolution of 1399 there was as remarkable an attention shown to the formalities of the const.i.tution, allowance made for the men and the times, as in that of 1688. The parliament was not opened by commission; no one took the office of president; the commons did not adjourn to their own chamber; they chose no speaker; the name of parliament was not taken, but that only of estates of the realm. But as it would have been a violation of const.i.tutional principles to a.s.sume a parliamentary character without the king's commission, though summoned by his writ, so it was still more essential to limit their exercise of power to the necessity of circ.u.mstances. Upon the cession of the king, as upon his death, the parliament was no more; its existence, as the council of the sovereign, being dependent upon his will. The actual convention summoned by the writs of Richard could not legally become the parliament of Henry; and the validity of a statute declaring it to be such would probably have been questionable in that age, when the power of statutes to alter the original principles of the common law was by no means so thoroughly recognised as at the Restoration and Revolution. Yet Henry was too well pleased with his friends to part with them so readily; and he had much to effect before the fervour of their spirits should abate.

Hence an expedient was devised of issuing writs for a new parliament, returnable in six days. These neither were nor could be complied with; but the same members as had deposed Richard sat in the new parliament, which was regularly opened by Henry's commissioner as if they had been duly elected.[180] In this contrivance, more than in all the rest, we may trace the hand of lawyers.

[Sidenote: Retrospect of the progress of the const.i.tution under Richard II.]

[Sidenote: Its advances under the house of Lancaster.]

If we look back from the accession of Henry IV. to that of his predecessor, the const.i.tutional authority of the house of commons will be perceived to have made surprising progress during the course of twenty-two years. Of the three capital points in contest while Edward reigned, that money could not be levied, or laws enacted, without the commons' consent, and that the administration of government was subject to their inspection and control, the first was absolutely decided in their favour, the second was at least perfectly admitted in principle, and the last was confirmed by frequent exercise. The commons had acquired two additional engines of immense efficiency; one, the right of directing the application of subsidies, and calling accountants before them; the other, that of impeaching the king's ministers for misconduct.

All these vigorous shoots of liberty throve more and more under the three kings of the house of Lancaster, and drew such strength and nourishment from the generous heart of England, that in after-times, and in a less prosperous season, though checked and obstructed in their growth, neither the blasts of arbitrary power could break them off, nor the mildew of servile opinion cause them to wither. I shall trace the progress of parliament till the civil wars of York and Lancaster: 1. in maintaining the exclusive right of taxation; 2. in directing and checking the public expenditure; 3. in making supplies depend on the redress of grievances; 4. in securing the people against illegal ordinances and interpolations of the statutes; 5. in controlling the royal administration; 6. in punishing bad ministers; and lastly, in establishing their own immunities and privileges.

1. The pretence of levying money without consent of parliament expired with Edward III., who had a.s.serted it, as we have seen, in the very last year of his reign. A great council of lords and prelates, summoned in the second year of his successor, declared that they could advise no remedy for the king's necessities without laying taxes on the people, which could only be granted in parliament.[181] Nor was Richard ever accused of illegal tallages, the frequent theme of remonstrance under Edward, unless we may conjecture that this charge is implied in an act (11 R. II. c. 9) which annuls all impositions on wool and leather, without consent of parliament, _if any there be_.[182] Doubtless his innocence in this respect was the effect of weakness; and if the revolution of 1399 had not put an end to his newly acquired despotism, this, like every other right of his people, would have been swept away.

A less palpable means of evading the consent of the commons was by the extortion of loans, and hara.s.sing those who refused to pay by summonses before the council. These loans, the frequent resource of arbitrary sovereigns in later times, are first complained of in an early parliament of Richard II.: and a pet.i.tion is granted that no man shall be compelled to lend the king money.[183] But how little this was regarded we may infer from a writ directed, in 1386, to some persons in Boston, enjoining them to a.s.sess every person who had goods and chattels to the amount of twenty pounds, in his proportion of two hundred pounds, which the town had promised to lend the king; and giving an a.s.surance that this shall be deducted from the next subsidy to be granted by parliament. Among other extraordinary parts of this letter is a menace of forfeiting life, limbs, and property, held out against such as should not obey these commissioners.[184] After his triumph over the popular party towards the end of his reign, he obtained large sums in this way.

Under the Lancastrian kings there is much less appearance of raising money in an unparliamentary course. Henry IV. obtained an aid from a great council in the year 1400; but they did not pretend to charge any besides themselves; though it seems that some towns afterwards gave the king a contribution.[185] A few years afterwards he directs the sheriffs to call on the richest men in their counties to advance the money voted by parliament. This, if any compulsion was threatened, is an instance of overstrained prerogative, though consonant to the practice of the late reign.[186] There is, however, an instance of very arbitrary conduct with respect to a grant of money in the minority of Henry VI. A subsidy had been granted by parliament upon goods imported under certain restrictions in favour of the merchants, with a provision that, if these conditions be not observed on the king's part, then the grant should be void and of no effect.[187] But an entry is made on the roll of the next parliament, that, "whereas some disputes have arisen about the grant of the last subsidy, it is declared by the duke of Bedford and other lords in parliament, with advice of the judges and others learned in the law, that the said subsidy was at all events to be collected and levied for the king's use; notwithstanding any conditions in the grant of the said subsidy contained."[188] The commons, however, in making the grant of a fresh subsidy in this parliament, renewed their former conditions, with the addition of another, that "it ne no part thereof be beset ne dispensed to no other use, but only in and for the defense of the said roialme."[189]

[Sidenote: 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.[190] A similar precaution was adopted in the next session.[191]

[Sidenote: 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 pet.i.tions on the last day of the session, which put an end to all further discussion upon 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 pet.i.tions 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."[192]

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.[193]

This, an historian tells us, Henry IV. had vainly laboured to obtain;[194] but the taking of Harfleur intoxicated the English with new dreams of conquest in France, which their good sense and const.i.tutional 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.

[Sidenote: 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 pet.i.tion that all statutes might be confirmed is granted, with an exception as to one pa.s.sed 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."[195]

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, "a.s.sent 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 a.s.sent, 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.[196] A pet.i.tion, 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.[197]

[Sidenote: 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 a.s.sents, 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 G.o.d's help, ever should be. At the same time one Rees ap Thomas pet.i.tions the king to modify or dispense with the statute prohibiting Welchmen from purchasing lands in England, or the English towns in Wales; 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.[198]

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 pet.i.tion 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 a.s.sent of lords and commons is not expressed. In the next parliament the commons, reciting this ordinance, declare that it was never a.s.sented 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 pet.i.tion.

Nevertheless the pretended statute was untouched, and remains still among our laws;[199] 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 any pet.i.tion 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 pet.i.tion a.s.serts the commons to have joined in it.[200] The pet.i.tion and the statute are both in Latin, which is unusual in the laws of this time. In a subsequent pet.i.tion 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 a.s.sent of parliament.[201] 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 pet.i.tions seem designed indirectly to weaken its efficacy.[202]

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.[203] 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 pet.i.tion, 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. .h.i.t hath ever be thair libte and fredom, that thar sholde no statut no lawe be made offla.s.se than they yaf therto their a.s.sent; consideringe that the comune of youre lond, the whiche that is, and ever hath be, a membre of youre parlemente, ben as well a.s.senters as pet.i.tioners, 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 pet.i.tion 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 pet.i.tions beforesaid yeven up yn writyng by the manere forsaid, withoute a.s.sent 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 l.u.s.t: But that ever it stande in the fredom of youre hie regalie, to graunte whiche of thoo that you l.u.s.t, 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 a.s.sent. Savyng alwey to our liege lord his real prerogatif, to graunte and denye what him l.u.s.t of their pet.i.tions and askynges aforesaid."[204]

Notwithstanding the fulness of this a.s.sent to so important a pet.i.tion 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 pet.i.tions in part, and to engraft new matter upon them. Such was still the case till the commons. .h.i.t upon an effectual expedient for screening themselves against these encroachments, which has lasted without alteration to the present day.