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The constitutional history of England in its origin and development, Volume 3 online

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of the oaths by which he was bound to Richard, and the con-
viction which compelled him to advance a factitious hereditary
claim. The questions that arise upon this subject will always
be answered more or less from opposite points of view. It will Their pro-
be more instructive if we attempt first to collect and arrange constitu-
the particular instances in which the theory of parliamentary
institutions was advanced and accepted by the different factors
in the government, then to show that that theory was acted
upon to a very great extent throughout the first half at least
of the fifteenth century, and to note as we proceed the points
in which the accepted theory went even beyond the practice
of the times, and anticipated some of the later forms of par-
liamentary government This view will enable us summarily
to describe the character of the legislative, economical, and
administrative policy pursued by the two rival houses, and so
to strike the balance between them upon a material as well
as a formal issue.



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the nation.



^38 Constitutional History. [chap.

statement a Archbishop Arunders declaration, made on behalf of Henry IV

of the kings, ,. - ,. t . 1 ,. 1

and minis- m his first parliament, was a distmct undertaking that the new

ters, as to . , , , .

their wish king would reign constitutionally. Eichard II had declared

to rule with , . ® ,^ f ^ . "^ . „ ,. . , , , ,

consent of himself possessed of a prerogative practically unlimited, and had
enunciated the doctrine that the law was in the heart and mouth
of the king, that the goods of his subjects were his own^. Henry
wished to be governed and counselled by the wise and ancient
of the kingdom for the aid and comfort of himself and of the
whole realm ; by their common counsel and consent he would
do the best for the governance of himself and his kingdom,
not wishing to be governed according to his proper will, or of
his voluntary purpose and singular opinion, ' but by the common
advice, counsel, and consent,' and according to the sense and
spirit of the coronation oath ^. Again, when in the same par-
liament the commons 'of their own good grace and will trusting
in the nobility, high discretion and gracious governance ' of the
king, granted to him ' that they would that he should be in the
same royal liberty as his noble progenitors had been,' the king of
his royal grace and tender conscience vouchsafed to declare in full
parliament * that it was not his intent or will to change the laws,
statutes, or good usages, or to take any other advantage by the
said grant, but to guard the ancient laws and statutes ordained
and used in the time of his noble progenitors, and to do right
to all people, in mercy and truth according to his oath ^.' Nor
did this avowal stand alone. In the commission of inquiry
into false rumours, issued in 1402, Henry ordered that the
counties should be assured 'that it always has been, is, and
will be, our intention that the republic and common weal, and
the laws and customs of our kingdom be observed and kept
from time to time,' and that the violators of the same should
be punished according to their deserts, 'for to this end we
believe that we have come by God's will to onr kingdom ^'
It is true that these and many similar declarations owe some
part of their force to the fact that they presented a strong
contrast to Richard's rash utterances, and that thej were at the

* Vol. ii. p. 505. • Above, p. 14.

* Bot. Pari. iii. 434 ; above, p. 24. * Rymer, viii. 255.



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xvin.] Constitutional Professions. 239

time prompted by a desire to set such a contrast before the Declarations
ejes of the people. But as time went on and the alarm oftioiiai
reaction passed away, they were repeated in equally strong and
eyen more elaborate language. Sir Arnold Savage in 1401
told the king that he possessed what was the greatest treasure
and riches of the whole world, the heart of his people ; and the
king in his answer prayed the parliament to counsel him how
that treasure might be kept longest and best spent to the
honour of God and the realm, and he would follow it^. In 1404
bishop Beaufort, in his address to parliament, compared the
kingdom to the body of a man ; the right side answered to the
diurch, the left to the baronage, and the other members to the
commons \ Archbishop Arundel declared the royal will to the
same assembly, that the laws should be kept and ks. The expenses of the navy are
not counted here, for they are provided for by timnage and
poundage \ The extraordinary charges are those for the main-
tenance and reception of embassies, the rewarding of old

ibidem Frankelayn yulgariter nuncupAtur, magnis dilatus poflsea^ionibuB,
oec Don libere tenentes alii et valecti plurimi suis patriinoniis suffioientes
ad fiudendum juratam.' Cf. Monaroby, o. 1 2, p. 465.

' Monarchy, c. 12, p. 464.

' lb. c. 4, p. 453. A king's office stondith in two things, one to defend his
realme ageyn their ennemyes outward by sword, another that he defendith
his people ageyn wrong dears inwarde.'

• lb. c 5, pp. 454. 455. * Ih. c. 6, pp. 455, 456.

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244 Constitutional History. [chap.

Obligation of servants, the provision for royal buildings, for the stock of
help the jewels and plate, for special commissions of judges, royal pro-
"^' gresses for the sustentation of peace and justice, and above all

the resistance of sudden invasion ^ The nation is bound to
support the king in all things necessary to his estate and
dignity; his ordinary revenue may suffice for the household,
but the king is not only a sovereign lord, but a public servant ;
the royal estate is an office of ministration, the king not less
than the pope is servus servorum Dei\ He should for his
extraordinary charges have a revenue not less than twice that
of one of his great lords \ The question is how axlh such a
revenue be raised. There are among the expedients of French
finance some that might with parliamentary authority be
adopted in England ^ but the real source of relief must be
sought in the retention and resumption of the lands which the
Diminution kings were so often tempted to alienate. The king had once
estates to be possessed a fifth part of the land of England; this had been
diminished by the restoration of forfeited estates, by the recog-
nition of entails and other titles, by gifts to servants of the
crown, by provision for the younger sons of the king, and most
of all by grants to importunate suitors. The further diminu-
tion of the crown estates might be prevented ; the king might
content himself with bestowing estates for life; if he were
economical the commons would be ready to grant subsidies^.
K however he wished to restore national prosperity and to

A resump. live of his own, he must be prepared to go further : a general

tionofpfts . .' .^, i. , J V^ . X . . T

of land to be resumption of gifts of land made since a certam penod must

be enforced •. To do this and to secure that for the future

only due and proper grants should be made, it was necessary

to constitute or reform the royal council ''. This important body,

before which all questions of difficulty might be brought,

should not henceforth consist, as it had done, of great lords

who were prone to devote themselves to their own business

> Monarchy, c. 7, pp. 457, 458. • lb. c. 8, pp. 458, 459.

■ lb. c. 9, p. 459. * lb. c. 10, p. 461.

* lb. cc. 10, II, pp. 462-^64. • lb. c. 14, p. 467.

^ In the Rules or Council drawn up in 1390, Ord. i. 18, the buainesB of
the kin^ and kingdom is made to take precedence of all other matters.



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xviii.] Fortescue^s Model Council, 245

more than to the king's, but of twelve spiritual and twelve Portewjuo
temporal men, who were to swear to observe certain rules, romodeiiinK
and constitute a permanent council, none of whom was to beTOunciT."^^
removed without consent of the majority. To these should
be added four spiritual and four temporal lords to serve for
a year; the king should appoint the president or chief coun-
cillor. The wages of the members should be moderate, especially
those of the lords and the spiritual councillors ; if the charges
were very great the number might be reduced*. This body
might entertain all questions of state policy, the control of
bullion, the fixing of prices, the maintenance of the navy, the
proposed amendments of the law, and the preparation of business
for parliament. The great officers of state, especially the chan-
cellor, should attend on its deliberations, and the judges if
necessary; and a register of its proceedings should be kept*.
Chosen counsellors were much better than volunteers'. One Business
of the first things to be done after the resumption was to con- them.
soUdate and render inalienable or, so to speak, amortize the
crown lands, a measure which would entitle the king who
should enact it to the confidence of his subjects and the gra-
titude of posterity. Then from lands otherwise accruing, gifts
might be made ; grants for a term of years might be given with
consent of council, life estates and greater gifts only with
the consent of parliament*. Except the exact determination
of the selection and number of the councillors, Fortescue*s
scheme contains nothing which had not been in principle or
in practice adopted under Henry IV and Henry V. The
example for 'amortizing' the crown lands had been given in
the consolidation of the estates of the duchy of Lancaster ; the



*■ Monarchy, c. 15. pp. 468-470. The office of chief or president of the
ootmcil hftd been hM by William of Wykeham under Edward III ; Rot
Pari. iii. 38S : but the post was not a fixed one, and the title of oonBiliarius
principalis had belonged to Gloucester and Bedford as a part of the pro-
t«ctonhip. Coke says (4 Inst. p. 54), that John Russsll, bishop of Lincoln,
was fraUidem eonsilih in the i3t^ Edward IV. He was then keeper of
the priyy seaL

' Monarchy, c. 15, pp. 468-470.

' * Good Counsayle, 0pp. pp. 475, 476.

• Monarchy, c. 19, p. 473 ; see Rot. Pari. iii. 479, 579.

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246



Constitutional History.



[chap.



Fortescue's
plan had
been in use
under the
J^ancastrian
kings.



National
conscious-
ness of the
kin^s
position.



scheme of resumption broached so often, and accepted in prin-
ciple by Henry IV, had been put into force under Henry VI.
The powers of the council had been freely exercised during all
the three reigns, and, although the direct influence of parliament
on the council had been less under Henry VT than under
Henry IV, the theory of the relation of the two bodies subsisted
in its integrity ; it is only in the latter years of the last Lan-
castrian reign that the king attempts to maintain his council
in opposition to the parliament, and then only in the firm
belief that his council was fiEiithful to him, his parliament
actuated by hostile motives or prompted by dangerous men.

366. It is true that neither in the vague promises of
Henry IV nor in the definite recommendations of Sir John
Fortescue are to be found enunciations of the clear principles
or details of the practice of the English constitution. But the
constitution did not now require definitions. The discipline
of the fourteenth century, culminating in the grand lesson of
revolution, had left the nation in no ignorance of its rights and
wrongs. The great law of custom, written in the hearts and
lives and memories of Englishmen, had been so far developed as to
include everything material that had been won in the direction
of popular liberties and even of parliamentary freedom. The
nation knew that the king was not an arbitrary despot, but a
sovereign bound by oaths, laws, policies, and necessities, over
which they had some control. They knew that he could not
break his oath without God*s curse ; he could not alter the laws
or impose a tax without their consent given through their re-
presentatives chosen in their county courts. They knew how,
when, and where those courts were held, and that the mass of
the nation had the right and privilege of attending them ; and
they were jealously on the watch against royal interference in
their elections. And so far there was nothing very complex
about constitutional practice : there was little danger of dispute
between lords and commons ; the privilege of members needed
only to be asserted and it was admitted ; there was no restric-
tion on the declaration of gravamina^ or on the impeachment of
ministers or others who were suspected of exercising a malign



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XVIII.] The Privy Council, 247

influence on the government. When the king promised toTheconsti-
observe their liberties, men in general knew what he meant, and understood
watched how he kept his promise. They saw the ancient abuses natio^
disappear ; complaints were no more heard of money raised with-
out consent of parliament, or of illegal exaction by means of
commissions of array ; the abuses of purveyance were mentioned
only to be redressed and punished, and if legal decisions were
left unexecuted, it was for want of power rather than from
want of will*.

367. To recapitulate then the points in which the Lancas- Previous
trian kings maintained the constitution as they found it, would of Lancas-
be simply to repeat the whole of the parliamentary history,
which from a different point of view we have surveyed in this
chapter. It will be suflScient to mark the particulars in which
constitutional practice gains clearness and definiteness under
their sway. And of these also most have been noticed already.

Perhaps the feature of the constitution which gains most in imDortance
clearness and definiteness during the period is the institution council.
of the royal council, the origin and varying conditions of which
have been already traced down to the close of the fourteenth
century*. That body, however constituted at the time, has
been seen, from the minority of Henry III onwards, constantly
increasing its power and multipljdng its functions ; retiring into
the background under strong kings, coming prominently for-
ward when the sovereign was weak, unpopular, or a child.
At last, under the nominal rule of Richard 11, but really under its growth

• • 1 anddevelop-

the influence of the men who led the great parties m the par- ment.
liament and in the countiy, it has become a power rather
coordinate with the king than subordinate to him, joining with
him in all business of the state, and not merely assisting but
restricting his action. And as the council has multiplied its
functions and increased its powers, the parliament has endea-
voured to increase the national hold over the council by insisting
that the king should nominate its members in parliament, and
by more than once taking the nomination of the consultative

» See below, p. 26^ • Vol. ii. pp. 355-264.

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248



Constitutional Bhtory.



[chap.



Vote of
ronfldenoe
in 1406.



The counciL body out of his hands, superseding for a time by commissions
of reform both the royal council and the royal power itself.
Such an act it was which, in 1386, brought about the crisis
of the reign and the subsequent reactions which ended in
Richard's fall^

Henry IV accepted this constitution of the council : Henry V
acted consistently upon the same principle ; it forms the key to
guide us in reading the reign of his son : the manipulation of the
system by Edward IV supplies one of the leading influences of
the Tudor politics ; and the council of the Lancastrian kings is
the real, though perhaps not strictly the historical, germ of the
cabinet ministries of modem times. When in 1406 the house
of commons told the king that they were induced to make their
grants, not only by the fear of Qod and love for the king, bat
by the great confidence which they had in the lords then chosen
and ordained to be of the king^s continual council ^ they seem
to have caught the spirit and anticipated the language of a much
later period.

The demand that the members of the king's continual council
should be nominated in parliament and should take certain oaths
and accept certain articles for their guidance, was one which was
sure to be made whenever a feeling of distrust arose between the
king and the estates '• It was accordingly one of the first signs
of the waning popularity of Henry IV after Hot^ur's rebellion.
In the parliament of 1404, at the urgent and special request of
the commons, the king named six bishops, a duke, two earls,
six lords, including the treasurer and privy seal, and seven com-
moners, to be his great and continual council ^ In 1406, under
similar pressure, he named three bishops, a duke, an earl, four
barons, three commoners, the chancellor, treasurer, privy seal,
steward, and chamberlain ^ In 14 10 the king was requested
to nominate the most valiant, wise, and discreet of the lords,
spiritual and temporal, to be of his council, in aid and support

> Vol. ii. p. 476.

• Rot. Pari. iii. 568 ; above, p. 55.
" Vol. ii. 343, 368. 43a, 444.

* Rot. Pari. iii. 530; Ordinances, i. 237, 243 ; above, p. 44.
' Rot. ParL iii. 572 ; Ordinances, i. 395.



(Council
nominated
in parlia-
ment.



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xvni.] The Privy Council. 249

of good and substantial government; after a good deal of diB- Concord of
cuBsion the request was granted on the last day of the session ^. parliament
Dnring the reign of Henry Y the perfect accord existing between Henry Y.
the king and parliament made any question of the composition
of the council superfluous ; but the minority of Henry YI gave
the council at once a commanding position in the government.
In the first year of his reign it was constituted, not by a
mere nomination, but by a solemn act of the parliament ; the
king, at the request of the commons and by the advice and as-
sent of the lords, elected certain persons of state as well spiritual
as temporal to be counsellors assisting in government '. This Under
council consisted of the protector and the duke of Exeter, five the ooundi
bishops, five earls, two barons, and three knights ; a few names power.
were added in 1423, and again in 1430'. In addition to its
ordinary functions, this council was a real council of regency,
and by no means a mere consultative body in attendance on the
protector. It defined its own power in the statement that upon it acts as a

,.,,,., ..,111 . , council 01

it during the kmgs mmonty devolved the exercise and execu- regency.

tion of all the powers of sovereignty*. It may therefore be

r^arded as superseding or merging in its ofm higher functions

the ordinary powers of the continual council ; but it was really

the same body. The result, however, of the union of the two The pariia-

functions seems to have been that, after Henry came of ace and its oonnex-

7, , , ,. . , ion with

the executive power of the council ceased, the parliament either council after
forgot or did not care to exercise any influence in the selection
of the council ; as early as 1437 the king had begun to nominate
absolutely ' ; it became again a mere instrument in the hands of
the king or the court, and was often in opposition to the parlia-
ment or to the men by whom the parliament was led. The re-
moval of the old council then became a measure of reform, and



' Rot. Pari. iii. 623, 63a. * lb. iv. 175.

■ lb. ir. »oi, 344. * Above, p. 105.

* Nov. 12, 1437, <^t S. John's Clerkenwell, the lords of the council were
reappointed and new names added ; * and the king wol that after the
foonne as power was gyve by king Henry IV to his counsaillers, that the
kyng*s counsaillers that now be, Uiat they so do, after a cedule that was
rade there the which passed in the parlement tyme of K, H. the iiij.'
Ordinances, &c. v. 71 ; Bot. ParL y. 438.



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250 Constitutional History. [chap.

Council Henry's promise to nominate a sad and grave council was one of

holds execu- .

tive power the means by which he proposed to strengthen a general pacifica-

of theTork tion ^ During the protectorship of the duke of York, the council
again assumed the character of a regency for a short time, the
king, although he admitted the authority of a protector, pre-
ferring to lodge the executive power in the council*. No
thorough reconstitution of the council was however made during
the reign, and to the last it contained only the great lords who
were on Henry's side, with the great oflScers of state and other
nominees of the court. Edward IV, following perhaps the advice



ter of council of Sir John Fortescue, or the plan adopted by Michael de la Pole
Bd\wirdlV under Richard II, mingled with the baronial element in the
Kdors^ council a number of new men on whom he could personally rely,
and who were in close connexion with the Wydvilles. It may be
questioned whether the position which the privy council hence-
forth occupied was directly the result of an arbitrary policy on
the part of the crown, or of the weakness of the parliament ; but,
however it gained that position, it retained it during the Tudor
period, and became under Henry VII and Henry VIII an irre-
sponsible committee of government, through the agency of which
the constitutional changes of that period were forced on the
nation, were retarded or accelerated.
Parliament Not content with securing such a public nomination of the
oaths on the privy council as gave the estates a practical veto on the appoint-
reguiates ment of unpopular members, the parliament attempted, by the
ooundfE^ imposition of oaths or rules of proceeding and by regulating the
payments made to the councillors, to retain a control over their
behaviour. In 1406 the commons prayed that the lords of the
council might be reasonably rewarded for their labour and dili-
gence' ; in 1 4 10 the prince of Wales, for himself and his fellow
councillors, prayed to be excused from serving imless means
could be found for enabling them to support the necessary
charges*; in the minority of Henry VI the salaries of the members

* See above, pp. 157, 166 ; Rot. ParL v. 340..

* Above, p. 174; Rot. ParL v. 289, 290.
■ Rot. Pari. iii. 577.

* lb. iii. 634.



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xvin.] TAe Privy Council. 251

were very high; in 1431 they were secured to them according Payments to
to a r^olar tariff^ ; and in 1433 the self-denying policy of the
duke of Bedford enabled him, by obtaining a reduction of this
item of account, to secure a considerable economy *. The duke
of York, when he accepted the protectorship in 1455, insisted on
the payment of the council '. The provision for the wages of the
permanent council was one of the particular points of Fortescue's
scheme ; but by that time the parliament had ceased to possess
or claim any direct control over the payment.

It was not so with the rules which were prescribed for the Rules fmd
conduct or management of business, and the oaths and charges fur the
by which those rules were enforced. Several codes of articles,
running back to the days of Edward I, still existed^; and various
attempts were made throughout the fifteenth century to improve
upon them. The rolls of parliament for 1406, 1424, and 1430
contain such regulations, which are constantly illustrated by the
proceedings of the council. Those of 1 406 were enacted in parlia-
ment and enrolled as an act"; those of 1424 were contained in
a schedule annexed to the act of nomination * ; those of 1430 were
drawn up in the council itself, approved by the lords and read in
the presence of the three estates, after which they were subscribed
the councillors ''. Copies of these documents are preserved also
among the records of the privy council ; especially one drawn up

at Reading in December 1426 *. The object of these regulations Ohjject of

■ 1 . 1 •11 <• » thea© rules.

was in general to prevent the councillors from accepting or

sanctioning gifte of land, from prosecuting or maintaining private

suits, from revealing the secrets of the body, or neglecting the

king's business*. Others prescribe rules for the removal of

> Rot. Pari. iv. 374. The archbishopB and cardinal Beaufort had 300
marks, other bishops 200; the treasurer 200; earls 200; barons and
bannerets £100, esquires £40. Cf. Ordinances, iii. 155-158, 202, 222, 266.

* Rot. ParL iv. 446; above, p. 118. » Rot. Pari. v. 286.

* See vol. ii. p. 258 ; Foed. i. 1009; FIeta» i. c. 17 ; Coke, 4 Inst. p. 54;
Bot. Pari. i. 218, iii. 246, iv. 423; Ordinances (1390), i. 18.



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 26 of 68)