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

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* Rot. Pari. iii. 585-589 ; Ordinances, i. 297.

* Rot. ParL iv. 201 sq.; Ordinances, iii. 148-152.
' Rot. Pari. iv. 343, 344 ; Ordinances, iv. 59-66.

' Rot. Pari. V. 407; Ordinances, iii. 213-221. See also one of 1425;
Ordinances, iii. 175; and Lambard, Archeion, pp. 141-I47.

* Ordinances, i. 18,

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25^ ConstUutional EUtory. [chap.

Valid ezer- unworthy members^ and guard against the usurpations of
liamentary individuals by fixing a quorum ^. The anxiety of the councillors
over the to avoid the oath and to be released from it after the expiration
of their term of office ^, and the strict conditions * on which they
insist before accepting office, seem to show that the method
adopted was sufficiently stringent to be eflfectuaL There can be
little doubt that the council thus nominated, regulated, and
watched by the parliament was a substantive and most valuable
feature of the Lancastrian system of government : not new, not
uniform in its composition, powers, or policy at different times,
but always forming a link between the king and the parliament,
responsible to both, and, during at least fifty years, maintaining
the balance of force between the two.
Powers of The powers of the council thus formed and guided were very
defined. great ; and the definition which was laid down in 1427, by which
they claim to have the execution of all the powers of the crown
during the king's minority, needs perhaps but a slight alteration
to make it applicable to their perpetual functions. Their work
was to counsel and assist the king in the execution of every
power of the crown which w^as not exercised through the
machinery of the common law. It was in the matter of judicial
proceedings only that their action was restricted ; and as the king
had long ceased to act as judge in person in the courts, his
Objection! council had no place there. The petitions against their as-
judicial acts. Sumption of jurisdiction in matters cognisable at common law,
which had been frequent under Richard II*, did not wholly
cease under his successor '^ ; but few cases, if any, of judicial
oppression by the council can be adduced during the period;
and in the year 1453 ^y ^^ ^^^ ^^ parliament the chancellor
was empowered to enforce the attendance of all persons sum-
moned by writ of privy seal before the king and his council in

> Rot. Pari. iv. 343, v. 408.

' lb. iv. 176, 423. See abo the important Mrtides addressed to
Bichard II by the council, protesting against his interfisrence ; Ordinances,
L 84 sq.

■ lb. iii. 609, 63a.

* See above, vol. ii. p. 606.

» Rot. Pari. iii. 471.

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xvin.] Tie Privy Council. 253

All cases not determinable bj common law \ Beyond the region Powen of
of the common law the council retained the right of advising
the king in knotty cases and appeals, in which the opinion of
the judges was likewise asked. As to powers of legislation and LenslAtive
taxation, the parliament was more liberal ; the power of ordain-
11^ relaxations of the statutes of the staple or of provisors was
formally entrusted to the king and council •; they were watched,
and, when the result was bad, were requested to abstain from or
suspend proceedings. Financial business was also expressly en- Financial
trusted to them, almost from the beginning of the Lancastrian
reigns ; a fact which, while it shows the confidence felt by the
nation in the honesty of the king and his ministers, proves un-
mistakeably the great difl&culty of obtaining supplies, the poverty
of the crown, and the scarcity of money. To go through the Variety of
particular expedients adopted by the council itself would be to expedients.
write the whole financial history of the time ; it was by the
advice of the council that the king was able to borrow money
by writs of privy seal'; more than once the members con-
tributed gifts or loans from their private purses to meet an
emergency *, or gave personal security, or wrote letters of per-
sonal application to lords or merchants \ In the most important
junctures, however, they received power from parliament, either
to stop the outgoings of money •, or to give security for the
large loans by which the accruing taxes were anticipated. In
the year 1421 the lords of the council were empowered by par-
liament to give security for the king's debts incurred in the
proposed expedition to France ^ Up to this time the loans
had generally been obtained by assigning to the creditor

' 31 Hen. VI, c. a ; Statutes, ii. 361, 362. The court of Star Chamber,
as the judicature of the council in special cases, was organised by the Act
3 Hen. VII, c. i, which appointed the chancellor, treasurer, privy seal, a
bi^op, a lord temporal of the eoundl, and the two chief justices, as judges.
The privy councillors however reta^ed their places: hence the dispute
whether this was a new court or an old one ; Ck>ke, 4 Inst. p. 61 ; Lambatd,
Archeion, pp. 163 sq. ' Bot. Pari. in. 428, 491.

" Ordinances, ii. 31, 280, a8i.

* As in 1400, see above, p. 27; Ordinances, i. 104, 105: in 1425,
ib. ili. 167.

* See OrdinADoes, L 200 sq. (1403) ; 343, 347 (1410).

* Ordinances, ill 348. "^ Rot. Pari. iv. 130.

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Constitutional History,


to give
security for

heard in

Variety of
forms of




certain portions of the revenue * ; thus bishop Beaufort's great
loans had been recovered by him from the customs *; some-
times the credit of the lords was pledged, as in 141 9'. From
142 1, however, the more prudent practice was followed with
some regularity ; the sums for which the council were author-
ised to give security increased from £20,000 in 1425^ to £40,000
in 1426, £24,000 in 1427", £50,000 in 1429 and 1431*,
100,000 marks in 1433 ^ and £100,000 in 1435, 1437, 1439,
1442, and 1447'. After the death of cardinal Beaufort these
acts of security disappear, and other expedients were adopted,
which illustrate both the exigences of the court and the waning
confidence placed by the country in the privy council.

The office of the council in hearing petitions addressed to
the king continues during the period before us much the same
as it had been under Edward m and Bichard ; the chamberlain
being the officer to whose care such documents were intrusted.
The jealousy of the commons was not aroused by the quasi-
judicial character of the proceedings, as it was against the sum-
mons by letter of privy seal, and the writ of subpoena. The
diversity of petitions which appear on the rolls of parliament,
variously addressed to the king, the lords, the commons, the
king and the lords, the lords and the commons, or the council,
must have given employment to a large class of lawyers, whose
action in the parliament itself was occasionally deprecated. It
could only be after much urgency that such petitions reached
either king or council. Nor was the correspondence of the
council at all confined to petitions and their answers; letters,
reports from every department of state, and applications for
money were addressed to them as commonly and as freely as to
the king himself '.

> Rot Pari. iv. 95, 96; Ordinances, ii. 170.

* lb. iy. Ill, 132, 210. 275. &c., 496.

* lb. iy. 95, 96, 117 ; and in 1434, Ordinances, iy. 202. So too in 1423
the feoffses of the duchy of Lancaster lent the king £1000 on the personal
security of the lords of the council; Ordinances, iii. 135.

* Rot. Pari. iy. 277. * lb. iy. 300, 317. • lb. iv. 339, 374.
» lb. iv. 426. • lb. iv. 482. 504 ; v. 7. 39, 135.

* On the minute points of practice in matters of petitions, see braides the
Rolls of Parliament, passim, and the Proceedings ot the Privy Council, the

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xvni.] The Great Council. 255

It is hardly possible to specify particularly the less definite Large share
functions of the council ; they are coextensive on the one hand coundi in
with royal prerogative, all exercise of which was a matter for buainess.
advice in this assembly; every sort of ordinance, pardon, licence,
and the like, which the king could authorise, was passed through
the council ; and where, on the other hand, special powers were,
as we have seen, vested in the king by parliament, they were
exercised with the advice of the council.

Besides its relation to the king and the parliament, the privy Relation of
council had a direct relation to the great councils which were coum^lo
often called by the Lancastrian kings on occasions on which it oou^^^
was not necessary or desireable to call a parliament. These great
councils, the constitution of which was very indefinite, were
essentially deliberative rather than executive, but they very often
appear rather as enlarged and * afPorced ' sessions of the privy
council, than as separate assemblies. It is probable that the
theory which gives to all the peers of the realm the right of
approaching the king with advice was thus reduced to practice ;
and that, as volunteer advisers, any of the lords who chose
might occasionally attend the council. But the more formal
sessions of the great council were attended by persons sum-
moned by writs of privy seal, sometimes in large numbers*;
and thus was formed an assembly of notables whose advice, though
welcome, was not conclusive. As these assemblies had no regular Loose consti-
constitution or place in the parliamentary system, it is only great
now and then that a record of their proceedings has been pre-
served. They may, however, on all important occasions of their
sitting, be regarded either as extra-parliamentary sessions of
the house of lords or as enlarged meetings of the royal council.
In both characters they are found acting, as we have seen, in
questions of the regency after the death of Henry Y, in the dis-
putes between Beaufort and Gloucester, and in the preliminary

remarkf of Sir Harris Nicolas in the prefaces to the latter work ; L p. xzv ;
u. pp. zH. TTTJ ; Vi. pp. xc sq.

^See for example the list of persons summoned in 1401. Ordinances, i.
155 Bq.; »nd others, ib. 179, 180; ii. 73, 80, 85; iii. 323 ; iv. i<)i ; v. 237.
238; vi 163, 206, &o. Most of the great councils here indicated have
been noticed already.

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2^6 Constitutional History, [chap.

work of parliament, as had been usual before parliament
became a fall representation of the three estates.
Relations 368. The relations of the council to the kinff and the parlia-

ttctwocn tad

crown and ment had thus gained definiteness and recognition. Scarcely

ment less was this the case with the direct relations between the

crown and the parliament The period before us witnessed

some Tery important exemplifications of the matured action of

The house the constitution in this respect also. The house of lords, for so

of lords.

the baronage may be now called, mnderwent under the Lancas-
trian kings none but personal changes, and such formal modifi-
cations as the institution of marquessates and viscounties ; th^
powers remain the same as before, and in matters where they
attempt a separate action, as for instance in the arrangement of
the r^ncy or protectorate, their action, which is in itself as
much the action of the great council as of the baronage eo nondHe,
is generally confirmed by an act of the whole parliament. Such
minor particulars as are worth recording may be noted in an-
other chapter, in which the antiquities of parliament may be
examined in regular order. The history of the house of com-
mons, on the other hand, famishes some valuable illustrations

Qnestiont of constitutional practice. These illustrations, many of which

houseo? have been noted already, and many of which must be recapitu-
lated again, may be for our present purpose arranged in their
natural order under the heads of organisation of the. house of
commons, including election, privilege, freedom of conference
and freedom of debate, and the powers of the house of commons
as a part of the collective parliament, exercised in general de-
liberation, legislative action, taxation, and control of the national

Ckmnty The regulation of the county elections with a view to securing

not merely a fair representation but the choice of cooapetent
counsellors for the national senate, was a point upon which some
consideration had been spent under Edward III, whom we have
seen rejecting all propositions made for limiting the electoral
body and diminishing the powers of the old county courts \

Vol. ii. pp. 425. 433.

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XVIII.] Electoral Rights, 257

Much jealousy of the right of the full county court to elect had Mainten-
been evinced on more than one occasion; Edwards ordinance right of the
against the choice of lawyers had remained a dead letter ^ ; to elect
Richard had been obliged to withdraw from his writs in 1388 the shire;
the words which directed the election of persons who had taken
no part in the recent quarrels * ; his interference in the elections
of 1 397 was one of the grounds of his deposition ', and Heniy IV
had been taken to task for excluding lawyers from the parlia-
ment of Coventry in 1404*. Yet there can be little doubt that
the right, however jealously watched, was sparingly exercised ;
that, under the influence of the crown or of the great lords, the evaded by
sherifls often returned their own nominees; and that neither orgreatmcn.
the composition of the county court, the regularity of its pro-
ceedings, nor the way of ascertaining its decisions, was very de-
finitely fixed. Sometimes a few great men settled the elections,
sometimes a noisy crowd failed to arrive at any definite choice,
sometimes the sheriff returned whom he pleased. It was to Regulatiors
remedy this uncertainty that Henry IV in 1406 enacted on the 1406.
petition of the commons that, in the first county court held after
the reception of the writ, proclamation should be made of the
day and place of parliament, and that all persons present, whether
suitors duly summoned for the purpose or others, should attend
the election ; they should then proceed to the election freely and
indifferently, notwithstanding any request or command to the
contrary, and the names of the persons chosen should be written
in an indenture under the seals of the persons choosing them :
this indenture should be tacked to the writ and considered
to be the sheriff's return ^ This act, so far as the electoral
body was concerned, only declared the existing custom ; but the
notice, the prohibition of undue influence and the institution of
the indenture, took from the sheriff all opportunity of making
a false return. An act of 14 10 vested in the justices of assize Penalties for
the power of inquiring into the returns, fining the sheriffs in the ment of
sum of j£ioo where the law had been broken, and condemning***®*®'

« VoL fi. p. 415. * Vol. ii. p. 479.

» VoL ii p. 504. * Above, p. 46.

» 7 Hen. IV, 0. 15 ; Stot. ii 156.


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258 Constitutional History. [chap.

Rewdente to the members unduly returned to forfeit their wages *. The first

bo chosfiD. _

parliament of Henry V restricted both the electoral vote and
the choice of the electors to residents within the county, city, or
borough for which they were to elect members*. In 1427 the
effect of the act of 1406 was so far modified as to allow the
accused sheriffs and knights to make answer and traverse before
any justices of assize, so that they should not be fined unless
Forty they had been duly convicted '. Three years afterwards, in the

freehoWen eighth year of Henry VI, was passed the restrictive act which,

to 6l6Ct« , _

in consequence of the tumults made in the county courts ' by
great attendance of people of small substance and no value,
whereof every of them pretended a voice equivalent, as to
such elections, with the most worthy knights and squires
resident,' established the rule that only resident persons pos-
sessed of a freehold worth forty shillings a year should be allowed
to vote, and that the majority of such votes should decide the
Freehold to election*. In 1432 it was ordered that the qualifying freehold
the county, should be within the county *. These regulations received fur-
ther ahthority by an act of the twenty-third year of the same
king, which, after recounting several abuses that had recently
revived, gave minute rules for the enforcement of these and
Knights, not the preceding statutes, and prescribed that the knights hence-
be chosen, forth to be chosen should be notable knights, esquires, or gentle-
men able to be knights, and not of the degree of yeoman or
under *. The restriction of the electoral franchise to the class
which was qualified to serve on juries commended itself to
moderate politicians of the fifteenth century. There is no
evidence to show that the allegations of the statute with re-
spect to the disorders of the county court are untrue. But the
history of the particular years in which the changes were made
throws no light upon the special circumstances that called
for legislation, and, what is more curious, the acts seem to have
produced no change whatever in the character or standing of
the persons returned; they were all, however, passed at the

* II Hen. IV, c. I ; Stat. ii. 162. * i Hen. V, c. i ; Stat. ii. 17a
■ 6 Hen. VT, c. 4; Stat. ii. 235. * 8 Hen. VI, c. 7 ; Stat, ii 243.

» 10 Hen. VI, c. a ; Stat. ii. 373. • 23 Hen. VI, c. 14; Stat. ii. 340 sq.

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XVIII.] Freedom of Speech. 259

request of the commons and in orderly times. Henry V had Re^ of
not the will, and the council of Henry VI had not the power, changes.
to reject a proposal of amended practice in favour of an ill-
defined and abused prescription. The key to the question is
probably to be found in the social changes which had been at
work since the days of Edward III, and which belong to
another part of our subject. We have seen how during the
struggle of parties in the latter years of Henry VI the forms
of election were evaded and dispensed with.

369. Next to purity of election the great requisite of the Freedom of
national council was freedom of action ; and this, whether ex- parliament,
emplified in the maintenance of the privilege of members, of under the
the right of conference with the lords, of the freedom of the kings.
Speaker, or of freedom of debate, was suflSciently strengthened
by practice under the three Henries. The most signal examples
have been noticed already; the case of the speaker Thorpe being
the most important instance of disputed privilege ^ and the
discussions of Henry IV with Savage and Chaucer the most
significant occasions on which the privilege of the Speaker was
asserted '. The right of conference with the lords, which had
been conceded as a matter of grace by Edward III and Richard II,
was claimed from and allowed by Henry IV, under protest, in
1402 ' and 1404 ^ ; in 1407 the king was obliged to concede the
whole question so far as money grants were concerned. The
last occasion secured to the two houses perfect freedom of debate,
and deserves special notice.

Henry IV, no doubt instructed by his parliamentary experi- The incresse
ence as earl of Derby, had more than once shown irritation in the
at the conduct of the commons, and they in return had been
somewhat tedious. In 140 1 they had requested that they might
have good advice and deliberation without being called upon
suddenly to answer on the most important matters at the end
of the parliament, as had been usual. The king was affironted
at the request, and commissioned the earl of Worcester to dis-
own any such subtlety as was imputed to him. A day or two

' Above, p. 164. • Above, pp. 29, 67.

* Boi. Pari. IH. 486 ; above, p. 37. * lb. iii. 533 ; above, p. 41.

8 2

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a6o Constitutional History, [chap.

Henry IV after they begged the king not to listen to any report of their

not to proceedings before they themselves informed him of them ; and

deiibera- Henry acquiesced ^ In 1407 however, in the parliament of

Gloucester, the king, without reference to the commons, inquired

of the lords what aid was required for the exigences of the

moment, and, having received their answer, sent for a certain

number of the commons to hear and report the opinion of the

lords. Twelve members were sent, and their report greatly

disturbed the house ; the king saw fit to recall the impolitic

measure and to recognise the rule that on money grants he

should receive the determination of the two houses by the

Money mouth of the speaker of the commons'. The leaving of the

declared by determination of the money grant to that estate which being

' collectively the richest was individually the poorest of the three

was consonant to common sense ; where taxation fell on all in

the same proportion, the commons might safely be trusted not

to vote too much : sparing their own pockets, they spared those

of the lords. But the importance of the event is not confined

to the points thus illustrated ; it contains a fiill recognition of

freedom of deliberation.

Right of the The right of the commons to consider and debate on every

commons to . .

debate all matter of public interest was secured to them by the recognition

public of their freedom of deliberation ; for although in words the king
acknowledged only their right to ' commune on the state of the
realm and the necessary remedies,' there was no question of
foreign policy or domestic administration that might not be
brought under that head. The kings moreover, in the old idea
of involving the third estate in a common responsibility with
themselves for all national designs, did not hesitate to lay all
sorts of business before them ; and the commons, as before, were
inclined to hang back rather than rashly to approach matters in
which they saw they might have little influence and incur much
blame. The care taken by Heniy V in preparing for his French
war is an abundant illustration of this ' ; but many other ex-
amples may be found. The petitions on Lollardy show that
even the clergy were not jealous of the commons when they were

* Rot Pari. ill. 455, 456. * lb. iii. 609; see aboye, p. 61.

^ Above, pp. 82-85.

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xvin.] Freedom of Debate, 261

ranged on the side of orthodoxy; the closing of the great schism DiscuBsion

was a matter on which the chancellor dilated in his opening poiitica.

speech and on which the commons of their own accord urged

the king to lahoar ^. The treaty between Henry V and Sigis-

mund in 141 6 was read before the commons as well as the lords,

and by their common advice and assent, in the parliament and

by authority of the same, Ratified, approved, and confirmed^.

The treaty of Troyes contained a provision that without the On the

r.11 #.11.1 in treaty of

consent of the three estates of the two kmgdoms peace should Troyea.

not be made with the dauphin ; in 1446 the commons joined in
the act by which the king was released from that obligation '.
Nor was any great reluctance felt to allow the commons to touch
the most delicate questions that came before the council: in
1426 the speaker of the commons was bold enough to express
to the duke of Bedford their sorrow for the quarrels which had On the
taken place between the great lords, referring unquestionably Sie lords,
to Beaufort and Gloucester*; in 1427 they petitioned the king
to intercede with the pope in favour of archbishop Chichele * ;
in 1433 they joined in taking the oath of concord by which
Bedford attempted to secure union in the government and
national support for it before he left England, and in the same
parliament they petitioned the king that Bedford might re-
main in the country •. It is, however, unnecessary to multiply
examples of a truth which is apparent in every article of the
parliamentary rolls. "With the single exception of the cases in
which the parliament attempted to tax the spiritualities or
otherwise interfere with the administration of the clergy, there
is really no exception to the accepted rule, that every question
of home administration or foreign policy might be canvassed in
the assembly of the commons.

The share of the commons in lemslation, whether expressed Share of the

° ' * commons in

by the mention of their petition in the preamble of the statutes, legislation.

or by their assent to measures which had been previously dis-
cussed by the lords, may be regarded as theoretically complete

Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 27 of 68)