William Stubbs.

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

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» Rot. ParL iii. 465, 493 ; iv. 70 sq. ' lb. iv. 96, p7 ; Rymer, ix. 403.

• See above, p. 154. * Rot. Par. iv. 396.

* lb. iv. 333. • lb. iv. 433 sq. ; above, p. 118.

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26% Constitutional History. [chap.

P*jj» t^ken before Henry IV began to reign. But for seyeral years there

commons to continues to be seen some mistrust of the honesty of the

secure the «,.,., - . ...

exact en- officials in the process of turning petitions into acts, or in-

theirpe- grossing the acts themselves. In 1401, as we have seen, the

titions when ,,, ... ,.■• .,. ii •■!

snnted. speaker had to petition that the commons might not be humed

through public business; and that the petitions which were
granted might be enrolled before the justices left the parlia-
ment ^. In the same parliament they informed the king that
they had been told that the permission given him in the last
session to dispense with the statute of provisors had been
enacted and entered in the roll in a form different from that
in which it was granted. The king under protest allowed the
rolls to be searched, and it was found that the commons were mis-
taken '. In 1406 they asked that certain elected members might
be appointed to view the enrolment and ingrossing of the acts

Henry v of parliament ; and this was granted \ But the prejudice no

secupes

them in the doubt continued to be strongly felt, and it was not until the

second year of Henry Y that the full security was obtained, and
the king undertook that the acts when finally drawn up should
correspond exactly with the petitions \ The plan subsequently
adopted of initiating legislation by bill rather than by petition
completed, so far as rules could ensure it, the remedy of the evil
A good instance of the careful superintendence which the com-
mons kept up over the wording of public documents is found in
the parliament of 1404, when the king submitted to them the
form of the commissions of array about to be issued ; the com-
mons cancelled certain clauses and words and requested that for
the future such commissions should be issued only in the cor-
rected form. The king consulted the lords and judges, and
very graciously agreed '.
Attempt to The attempt to bind together remedial legislation and
den^dh^^ grants of money, to make supply depend upon the redress of
grievances, was directly and boldly made by the commons in
1401; the commons prayed that before they made any grant
they might be informed of the answers to their petitions \ The

» Rot. Pari. iii. 455, 456. • lb. iii. 465. « lb. iii. 585.

* See above, p. 81. ^ Bot. Pari. iv. 526, 537. * lb. iii. 458.



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XVIII.] Form of Money Grants. 263

king's answer, given on the last day of the session, amounted to The kind's
a peremptory refusal; he said 'that this mode of proceeding
had not been seen or used in the time of his progenitors or pre-
decessors, that they should have any answer to their petitions
before they had shown and done all their other business of
parliament, whether it were matter of a grant or otherwise ; the
king would not in any way change the good customs and usages
made and used of ancient times.' It is probable, however, that The object

* , , informally

the point was really secured by the practice, almost immediately gaixied.
adopted, of delaying the grant to the last day of the session, by
which time no doubt the really important petitions had received
their answer, and at which time they were enrolled ^. Speedy
execution, however, was a different thing, and the petition of
the commons for it proves that delay was a weapon by no means
idle or harmless in the hands of the servants of the law.

370. That the commons should have a decisive share in the Share of the
bestowal of money grants had become since the reign of taxation
Edward III an admitted principle ; and the observance of the
rule is illustrated by the history of every parliament. In the
for^^ing pages the regular votes of taxation have been noticed
as they occurred; and the decision of Henry lY in 1407 has
been referred to as recognising the right of the commons to
originate, and, after it has received the assent of the lords, to
announce the grant, generally on the last day of the session.
The ordinary form of the grant expressed this ; it was made by expressed
the commons with the assent of the lords spiritual and temporal, of the grant.
This particular form curiously enough occurs first in the grants
made to Bichard U in 1395, the previous votes of money having
been made by the lords and commons conjointly'. It was observed
in 1 40 1 and 1402, and henceforth' became the constitutional

' Sir H. Nicolas (Ordin. i. p. Iziv) mentions a case in which it was
ordered that an error in the Roll should be corrected, and no such correc-
tion appears to have been made : from which he argues that the Bolls may
not have been ingroasad for two or three years after the session. But this
ouuld only be exceptional.

» Bot Pari. iii. 331.

* Kot howeyer without exceptions. In 1404 the lords for themselves
and the ladies temporal and all other persons temporal granted a tax of
30f. 00 the £ao of land ; Bot. Pari iii. 546.



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264



ConstiiMtional History,



[chap.



Departure

fh>iii the
ordinary
usa^e.



Attempt of
the com-
mons to tax
the stipen-
diary Clergy.



Appropri-
ation of
frrants to
special
purposes.



form. It may however be questioned whether Hemys dictum
in 1407 was at the time understood to recognise the exclusive
right of the commons to originate the grant. On one occasion in
the reign of Edward IV there was a marked departure from
the form established by long usage. This was in 1472, when on
the occasion of an act for raising a force of 1 3,000 archers, the
commons, with the advice and assent of the lords, granted a
tenth of the revenue and income not belonging to the lords of
parliament ; and the lords, without any reference to the advice
of the commons, followed it up with a similar grant from their
own property^. It is questionable whether this was not a
breach of the accepted understanding, but no objection was
taken to it at the time; the grant, as a means of raising
additional funds, failed of its object, and it did not become a
precedent. The attempt of the commons in 1449 to tax the
stipendiary clergy, an attempt perhaps made by oversight, was
defeated by the king, who referred the petition which contained
their proposal to the lords spiritual to be transmitted to the
convocation*. As however throughout this period the convoca-
tions followed, with but slight variations, the example set by
the commons, the practical as well as the formal determination
of the money grants may be safely regarded as having now
become one of the recognised functions of the third estate.

371. The power which the exercise of this function gave them
was freely employed in more critical matters than those of
political deliberation and legislation; and perhaps the hold
which it gave them on the royal administration, both in state
and household, is the point in which the growth of constitutional
ideas is most signally illustrated by the history of this century.
The practice of appropriating particular grants to particular
purposes had been claimed under Richard II' ; it was observed
under Henry IV and his successors ; the greater grants were
almost invariably assigned to the defence of the realm ; tunnage
and poundage became the recognised provision for the safe-
guard of the sea*; the remnants of the ancient crown lands



> Hot. Pari. vi. 4^.
' Vol. ii. p. 563 sq.



Il>. V- 153, 153.
See above, p. 343.



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XVIII.] Interference with Expenditure, %6^

were set apart for the expenses of the household, for which they Assignments

to the king,

were obviously insufficient, and supplementary grants were

made from the other sources of national income to enable the

king to pay his expenses; and even before Calais had become to Calais,

the only foreign possession of the crown, a certain portion or

poundage of the subsidy on wool was regularly assigned to it'.

But it was the exigencies of the household which gave the com- to the

. , household,

mons their greatest hold on the crown, and it was a hold which

the kings rarely attempted to elude or to resist. One result of Separation
their interference in this respect was the separation of the household
household or ordinary charges, the civil list or king's list, as from those
Fortescue calls it, from the extraordinary charges of the crown ; kingdom.
a point which the commons attempted to secure in 1404 by
apportioning revenue to the amount of £12,100; in 1406 it
was proposed to vote £10,000 for the purpose, and in 1413
that sum was assigned to the king as a payment to take pre-
cedence of all others, in consideration of the great charges of
his hostel, chamber, and wardrobe. The attempts made to
regulate the lavish expenditure and to relieve the poverty of
Henry VI have been enumerated in our survey of the history of
his reign. They show, by the diminution of the sums appor- increasing
tioned to him, either that the royal demesnes were alarmingly the crown,
reduced and the royal estate abridged, or else that the distinc-
tion between royal and national expenditure was more clearly
seen, and the different departments more independently adminis-
tered. The acts of resumption which had been urged by the Acts of

. resumption.
commons from the very beginning of the century were, first in

1450, adopted by Henry VI as a means of recruiting his
treasury, but they contained invariably such a list of exceptions
as must have nearly neutralised the intended effect of the acts.
The crown continued very poor until Ed\f ard IV and Henry VII
devised new modes of enriching themselves, and in its poverty
the commons saw their great opportunity of interference.

' For example, in 1449, the commons petition that 20^. from each sack
of wool tftxed for the subsidy may be assigned to CaUis, los. for wages,
5s. for victualling, 5s. for repairs. The king alters this, and assigns 1 3«. 4^.
for wages and victuals, and 6«. 8^. for repairs ; Rot. Pari. v. 146, 147. A
similar arrangement had been made in 1423 by the (Council ; Ord. iii. 19, 95.



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266 ConstitMtional Hutory, [chap.

Literference Very signal examples of such interference force themselves on

commons our notice both early and late. The request made in 1404 that
with the „ ,^ ,,,;.,. ^ ^ „ -, . ,

action of Henry Iv would dismiss his confessor, was followed up with

a petition for the removal of aliens from the household^. In
1450 Henry YI was asked to send away almost all his faithful
friend s^ He was told that his gifts were too lavish and must
be resumed'. In every case he had to yield, and it was hb
unwillingness as well as his inability to resist that caused the
nation to conceive for him a dislike and contempt, from which
the goodness of his intentions might have saved him. Where
the private aflfeirs of the household were thus scrutinised, it
could not be expected that the conduct of public officers could
Piw»tjoe of escape. The practice of impeachment directed against Michael
ment. de la Pole in 1386 was revived in 1450 for the destruction of his

grandson. But the process of events during the wars of the Boses
was too rapid to allow the parliaments, imperfect and one-sided
as they were, to be regarded as fair tribunals. The constitution
receives from such proceedings more lessons of warning than of
edification. The impeached minister, like the king who is put
on his trial, when he has become weak enough to be impeached,
may remain too strong to be acquitted ; and the majority which
is strong enough to impeach is strong enough to condemn. In
Suffolk's case, as we have seen, neither king nor lords had
strength enough to ensure a just trial ; Henry's decision was an
evasion of a hostile attack rather than the breach of a recognised
^?^^ _ rule* The bills of attainder which on both sides followed the
alternations of fortune in the field, illustrate political and per-
sonal vindictiveness, but contribute only a miserable series
of constitutional precedents. The prohibition of appeals of
treason made in parliament, which was enacted by Henry IV in
1399s ^^ & salutary act, although it did not preclude the use
of the still more fatal weapons. The rejected petition of 1432",
in which the commons prayed that, neither in parliament nor
council, should any one be put on trial for articles touching
freehold and inheritance, showed a perception of the entire un-

* Rot. Pari. iii. 534, 527. • lb. v. 316. » lb. v. 317.

• Above, p. 33. • Bot. Pari. iv. 403.



attainder.



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xvin.] JudU of Accounts. 267

fitness of a legislative assembly for entertaining such impeach-
ments. But the practice was too strong to be met by weak
legislation, and had, with all its cruelty and unfairness, some
vindication in the lesson which it could not £ail to impress on
unworthy ministers.
The rule of insisting on a proper audit of accounts was a Audit of

° . . acoounte

corollary from the practice of appropriating the supplies to insiflted on.

particular purposes. It was one which was scarcely worth con-
testing. In 1406 the commons, who objected to making a grant
until the accounts of the last grant were audited, were told by
Henry that ' kings do not render accounts ' ; but the boast was
a vain one ; the accounts were in 1407 laid before the commons Seouied.
without being asked for ; and the victory so secured was never
again formally contested. The statement laid by Lord Cromwell
before the parliament of 1433 shows that the time was past for
any reticence on the king's part with regard to money matters \

In this attempt to enumerate and generalise upon the chief General oon-

, elusion ftioni
constitutional incidents of a long period, it is not worth while theie ftkcts.

at every point to pronounce a judgment on the good faith of

the crown or the honesty of the commons; or to discuss the

question whether it was by compulsion or by respect to the

terms of their coronation engagements that the Lancastrian

kings were actuated in their overt acceptance and maintenance

of constitutional rules. It is upon the fact that those rules were The role of

observed and strengthened by observance, that they were notLanouter

broken when the king was strong, or disingenuously evaded tutionaL

when he was weak, that the practical vindication of the dynasty

must torn. Henry lY, as has been said more than once, was a

constitutional politician before he became king, and cannot be

charged with hypocrisy because when he became king he acted

on the principles which he had professed as a subject. Henry Y

in all that he did carried with him the heart of his people.

Henry YI was honest; he had been brought up to honour

and abide by the decisions of his parliament; the charge of

fiBilseness, by which the strong so often attempt to destroy the

last refuge which the weak find in the pity and sympathy of

^ Above, pp. 54, 117; and below, p. 458.



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2,6S Constittitional History, [chap.

Best side mankind, is nowhere proved, and very rarely even asserted,
Lancaster against him. But the case in favour of these kings does not
^®' depend on technicalities. By their devotion to the work of

the country, by the thorough nationality of their aims, their
careful protection of the interests of trade and commerce, their
maintenance of the universities, the policy of their alliances,
their attention to the fleet as the strongest national arm ^, the
first two Henries, Bedford, Beaufort, and in a less degree
Henry VI and Gloucester, vindicated the position they claimed
as national ministers, sovereign or subject.

372. There is another side to the question. The Lancastrian
Misfortunes reigns were to a great extent a period of calamity. There were
iLiiaister pestilences, famines, and wars : the incessant border warfare of
reigns. ^^ reign of Henry IV tells not only of royal poverty and
weakness, but of impolicy and of disregard for human suffering.
The war of Henry V in France must be condemned by the judg-
Mischief ment of modem opinion ; it was a bold, a desperate undertaking,
Uie long ^ fraught with suffering to all concerned in it ; but it is as a great
national enterprise, too great for the nation which undertook it
to maintain, that it chiefly presents itself among the prominent
features of the time. It is common and easy to exaggerate the
miseries of this war ; its cost to England in treasure and blood
was by no means so great as the length of its duration and the
extent of its operations would suggest. The French adminis-
tration of Bedford was maintained in great measure by taxing
the French *, rather than by raising supplies from England, and
the great occasions of bloodshed were few and far between.
But it did produce anarchy and exhaustion in France, and

^ The Libel of English policy, whether addressed to Cardinal Beaufort
or to Kemp, Stafford, or Hungerford before 1436, in a very remarkable
way presses the safeguard of the sea and the development of oommerce
upon the ministers ; it shows however that some such pressure was needed ;
quoting the saying of Sigismund, that Dover and Calais were the two eyes
of England, and looking back with regret on the more efficient administra-
tion of Henry V. It is printed in the Political Poems, vol. ii. pp. 157-205 ;
and recently in Germany with a preface by Pauli. There is a tract of Sir
John Fortescue to the same purpose, 0pp. i. p. 549. See too Capgrave,
111. Henr. p. 134.

* £20,000 a year however was paid by Henry VI to the Duke of York
as lieutenant of France, Ord. v. 171.



war.



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XVIII.] Secret of the fall of Lancaster. 269

over-exertion and consequent exhaustion in Enirland ; and from Exhaustion
, , . , , . ^ , . , produced by

these combined causes arose the most prominent of the impulses the war.

that drove Henry VI from the throne. Still the war was to

a certain extent felt to be a national glory, and the peace that

ended it a national disgrace, which added a sense of loss and

defeat over and above the consciousness that so much had been

spent in vain.

But neither national exhaustion, resulting from this and other These causes

insufficient

causes, nor the factious desicms of the house of York, nor the to account

. .,,-,. - , . ., , for the fall

misguided feelmg of the nation with respect to the peace, nor of the house

the unhappy partisanship and still more unhappy leadership of
Marge^et of Anjou, would have sufficed to unseat the Lancas-
trian house, if there had not been a deeper imd more penetrating
source of weakness ; a source of weakness that accounts for the
alienation of the heart of the people, and might under other
circumstances have justified even such a revolution. When the
commons urged upon Henry IV the need of better and stronger
governance, they touched the real, deep, and fatal evil which in
the end was to wear out the patience of England. Although
sound and faithful in constitutional matters, the Ltuicastrian
kings were weak administrators at the moment when the nation
required a strong government. It was so from the very begin- The weak-

nine? ^.- Constitutional progress had outrun administrative order, house be-
^? ,* n.., .,, t™y®d from

Perhaps the very steps of constitutional progress were gained by the first.

reason of that weakness of the central power which made perfect
order and thorough administration of the law impossible;
perhaps the sources of mischief were inherent in the social state
of the country rather than in its institutions or the administra-
tion of them ; but the result is the same on either supposition ;
following events proved it. The Tudor government, without
half the constitutional liberties of the Lancastrian reigns, pos-
sessed a force and cogency, an energy and a decision, which was
even more necessary than law itselfl A parallel not altogether
false might be drawn between the eleventh, or even the twelfth

' See the letter addressed to Hemy FV by Philip Repingdon in 1401 ;
Beddngton, i. 151 ; Ad. Uak, pp. 65, 66 ; letter of Chandler to Beckington
in 145 a, ib. p. 368.



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270 Constitutional History. [chap.

Pwraiiel century, and the fifteenth. Henry VI resembled the Confessor
history. in many ways. Henry VII brought to his task the strength of
the Conqueror and the craft of his son : England under Warwick
was not unlike England under Stephen, and Henry of Bich-
mond had much in common with Henry of Anjou.
Want of The want of 'governance' constituted the weakness of

governance. 2;enry IV ; he inherited the disorders of the preceding reign,
and the circumstances of his accession contributed additional
causes of disorder. The crown was impoverished, and with
impoverishment came inefficiency. The treasury was always
low, the peace was never well kept, the law was never well
executed ; individual life and property were insecure ; whole
districts were in a permanent alarm of robbery and riot ;
Adminifltm- the local administration was either paralysed by party faction
ness. ' or lodged in the hand of some great lord or some clique of
courtiers. The evil of local faction struck upwards and placed
the elections to parliament at the command of the leaders. The
social mischief thus directly contributed to weaken the consti-
tution. The remedy for insufficient * governance ' was sought,
not in a legal dictatorship such as Edward I had attempted
to assume, nor in stringent reforms which indeed without some
such dictatorship must have almost certainly &iled, but in
admitting the houses of parliament to a greater share of influ-
ence in executive matters, in the ' afibrcing ' or amending of the
council, and in the passing of reforming statutes.
Beoognition It is curious to mark how from the very beginning of the
century men saw the evils and failed to grasp the remedy. Not
to multiply examples; in 1399 ^® commons petitioned against
illegal usurpations of private property ^ ; the Paston Letters
furnish abundant proof that this evil had not been put down at
the accession of Henry VII. The same year the county of Salop
was ravaged by armed bands from Cheshire *. The country was
infested with malefactors banded together to avoid punish-
ment'. In 1402 there is a petition against forcible entries
by the magnates*. In 1404 the war between the earls of

> Rot. Pari. iii. 434. » lb. iii. p. 441.

■ lb. iii. 445. * lb. iii. 487.



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xvrn.] ' Private Wars. 271

Northumberland and Westmoreland was regarded bj the par- Private war.
liament as a priyate war ; and Northmnberland's treason was
condoned as a trespass only^ In 1406 the king had to remodel Frequent

> « •« ■ « - reinoii"

his council in order to ensure better governance; but thestruioes.
petition for ' good and abundant goTemance ' was immediately
followed by a request for the better remuneration of the lords
of the council, and the speaker had to insist on more co-opera-
tion from the lords in the work of reform ^ In 1407 the king
was told that the better and more abundant goyemance had
not been provided, the sea had been badly watched, and the
marches badly kept^. In 14 11 a statute against rioters wasstatute§
passed *. On the accession of Henry V the cry was repeated ; ^Sl.
the late king*s promises of governance had been badly kept ;
the marches were still in danger; the Lollards were still dis-
turbing the peace; there were riots day by day in diverse parts
of the realm ^ The parliament of 14 14 reissued the statute
against rioters'; in 141 7, according to the petitions, large
bands of associated malefactors were ravaging the country,
plundering the people, holding the forests, spreading Lollardy,
treason, and rebellion, robbing the coUectors of the revenue ''.
Matters were still worse in 1420 ; whole counties were infested Bands of
by bandits; the scholars of Oxford were waging war on the
county; the inhabitants of Tynedale, Redesdale, and Hexham-
shire had become brigands; all the evils of the old feudal
immunities were in full force '. Similar complaints accumulate Complaints
during the early years of Henry VI, and seem to reach the Henry vi.
highest r^ons of public life in the armed strife of Gloucester
and Beaufort. But the general spirit of misrule was quite



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 28 of 68)