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

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clerical" England as elsewhere, is indeed tender ground; the benefits
** ^ ^* which it is supposed to secure are the personal purity of the
individual, his separation from secular ways and interests, and
his entire devotion to the work of God and the church. But
the results, as legal and historical records show us, were very
different. Instead of personal purity, there is a long story of
licenced and unlicenced concubinage, and, appendant to it, much
miscellaneotw profligacy and a general low tone of morality in
the very point that is supposed to be secured. Instead of sepa-
ration from secular work is found, in the higher class of the
clergy entire devotion to the legal and political service of the
country, and in the lower class idleness and poverty as the
alternative. Instead of greater spirituality, there is greater
frivolity. The abuses of monastic life, great as they may occa-
sionally have been, sink into insignificance by the side of this
evil, as an occasional crime tells against the moral condition of
a nation far less fatally than the prevalence of a low morality.
The records of the spiritual courts of the middle ages remain
in such quantity and in such concord of testimony as to leave
no doubt of the facts ; among the laity as well as among the
clergy, of the towns and clerical centres, there existed an amount



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XIX.] Clerical Influence. 373

of coarse vice which had no secrecy to screen it or prevent it Good cha-

_ ,. rmi., I i.11 n r HMJter Of tlie

from spreading. The higher classes of the clergy were free from higher
any general faults of the kind ; after the twelfth century, when
many of the bishops were, if not married, at least the fathers
of semi-legitimate families, the episcopal character for morality
stands deservedly high; bishop Bumell, the great minister of
Edward I, is perhaps an exception ^ ; but there is scarcely a case
of avowed or proved immorality on record until we reach the
very close of the middle ages, and there is no case of the de-
privation of a bishop for any such cause. The great abbots were,
with equally rare exceptions, men of high character. It is in
the obscurity of the smaller monasteries and in the self-indul-
gent, unambitious, and ignorant ranks of the lowest clergy, that
we find the vicea which called in the former class for summary
visitation and suppression, and in the latter for the exercise of
that disciplinary jurisdiction which did so much to spread and
perpetuate the evils which it was created to cure. For the Abuses of

. . , 1.1,. 1 . . 1 1 . ***® spiritual

spintual courts, whilst they imposed spiritual penalties, recog- courts,
nised perfunctory purgations, and accepted pecuniary fines, really
secured the peccant clerk and the immoral layman alike from
the due consequences of vice, such as either stricter discipline
or a healthier public opinion would have been likely to impose.
And in this, as in other particulars, the medieval church in-
curred a fearful responsibility. The evils against which she
had to contend were beyond her power to overcome, yet she
resisted interference from any other hand. The treatment of Their in-
such moral evils as did not come within the contemplation of reten.
the common law were left to the church courts; the church
courts became centres of corruption which archbishops, legates,
and councils tried to reform and failed, acquiescing in the
failure rather than allow the intrusion of the secular power.
The spiritual jurisdiction over the clergy was an engine which



^ Bumell is probably the bishop who had five sons, and against whom
archbishop Peckham attempted a prosecution in 1370; Wilk. Cone. ii. 40.
He was Peckham's personal rival, and one annalist wno mentions his death
in 12Q2 speaks of his * oonsanguineas, ne dicam filias' and * nepotibus suis
seu filiis'; Ann. Dunstable, p. 373.



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374 Consiiiutional History,

UnwiiiinK- the coufts altogether failed to manage, or so far failed as to
up clerical render reformation of manners by such means absolutely hope-
less : yet any interference of the temporal courts was resented
and warded off until the evil was irremediable, because a clerk
stripped of the reality of his immunities, but retaining all the
odium with which they had invested him, would have no chance
of justice in a lay court. Thus on a small stage was reproduced
the result which the policy of the papacy brought about in the
greater theatre of ecclesiastical politics. The practical assertion
that, except by the court of Rome, there should be no reforma-
tion, was supplemented by an acknowledgment of the evils that
were to be reformed, and of the incapacity of the court of Home
to cure them: there popes and councils toiled in vain; they
Vitality of could bear neither the evils of the age nor their remedies. Strange
'to say, some part of the mischief of the spiritual jurisdiction
survived the Reformation itself, and enlarged its scope as well
as strengthened its operation by the close temporary alliance
between the church and the crown. To this the English church
owes the vexatious procedure of the ecclesiastical tribunals and
the consequent reaction which gave so much strength to Puri-
tanism : nay, Puritanism was itself leavened with the same
influences, and, instead of struggling with the evils of the system
which it attacked, availed itself of the same weapons, met a like
failure, and yielded to a like reaction. But on this point, as
has been said before, it is useless to dogmatise; and no mere
theory, however consistent and perfect in itself, can either
insure its own realisation or prove itself applicable to difllerent
ages and stages of growth.



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CHAPTER XX.



PARLIAMENTARY ANTIQUITIES.

407. Parliamentary usages, definite or obscure. — 408. Plan of the chap-
ter. — 409. Choice of the day for parliament 410. Annual parliaments. —

411. Length of notice before holding parliament. — 412. Choice of the place
of session.— 413. The Palace of Westminster. — 414. Parliaments out of

London. — 415. Share of the council in calling a parliament 416. Issue

and form of writs 417. Writs of summons to the lords. — 418. Writs of

the justices. — 419. Writs to the Sheriffs for elections. — 420. County

elections. — 421. Return on indenture. — 422. Borough elections 428.

Contested and disputed elections. — 424. Manucaption and expenses. — 425.
Meeting of parliament and opening of the session. — 426. Separation of the
houses.— 427. House of Lords.— 428. Ranks of the peerage.— 429. Number
of lords temporal. — 430. Number of lords spiritual. — 431. Justices in the
House of Lords. — 432. Clerical proctors. — 433. Numbers and distribution
of seats in the House of Commons. — 434. Clerks. — 435. The Speaker of the
Commons. — 436. Business laid before the houses by the king. — 437. Supply
and account. — 438. Form of the grant. — 439. Proceeding in legislation. —
440. The Common petitions.— 441. Form of statutes. — 442. Details of pro-
cedure. — 443. Sir Thomas Smith's description of a session 444. Judicial

power of the Lords. — 445. Prorogation. — 446. Dissolution. — 447. Writ of
expenses. — 448. Dbtinctions of right and privilege. — 449. Proxies of the

Lords. — 450. Right of protest 451. Freedom of debate. — 452. Freedom

from arrest. — 453. Privileges of peerage.

407. The rules and forms of parliamentary procedure had, Antiquity of
before the close of the middle ages, begun to acquire that per- tary cus-
manence and fixedness of character which in the eyes of later
generations has risen into the sanctity of law. Of these rules
and forms some are very ancient, and have preserved to the
present day the exact shape in which they appear in our earliest
parliamentary records ; others are less easily discovered in the



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376



Constitutional History,



[cHiP.



Records
clear.



Usages
obscure.



Reason for
this obscu-
rity.



Difference in medieval chronicles and rolls, and owe their reputation for

trhcii* his*'

tory. antiquity to the fact that, when they make their appearance in

later records, they have already assumed the prescriptive dignity
of immemorial custom. To the former class for instance
belong the formulae of the legislative machinery, the writs for
assembling parliament, the methods of assent and dissent, the
enacting words of statutes, the brief sentence of royal acceptance
or rejection ; to the latter class belong the methods of proceeding
which are less capable of being reduced to written record ; the
machinery of initiation and discussion, of committees and reports;
the process by which a Bill passes through successive stages
before it becomes an Act, the more minute rules of debate,
and the more definite elaboration of points of privilege. Both
classes of forms are subject to a certain sort of expansion ; but
the former seems to have reached its full growth before any
great development of the latter can be distinctly traced. And
this difference is not to be explained on the theory that, as time
went on, freedom of debate and activity of discussion compelled
the use of new rules and the formation of a customary code,
while the more mechanical part of the old system was found to
answer all purposes as well as ever. There can be little ques-
tion that debates were as fierce and as tedious in the minority of
Henry VI as in the troublous days of Charles L No doubt the
public interest in politics, fostered by improved education and
stimulated by religious partisanship, gave to the latter a wider in-
fluence and made a more distinct impression on national memory.
As early as the seventeenth century the speeches of parliamen-
tary orators were addressed to the nation at large; although the
publication of the debates was still in the distant future. But
the fact that the rule and method of debate does, when it first
appears, wear the habit of custom, the constant appeal to pre-
cedent and prescription, the whole history and theory of privilege,
seem to show that the silence of earlier record is not to be
interpreted as negation. A very faint idea of parliamentary
activity would be formed firom the isolated study of the journals
of either house. The rolls of parliament, in like manner, furnish
scarcely a skeleton of the proceedings of the earlier sessions.



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XX.] Parliamentary Anti^ities. 377

Published speeches, the diaries of clerks and members, un- Want of
authorised and authorised reports of debate, enable us to realise, the details
in the case of the later parliaments, almost all that is historically ""^
important. For the medieval period we have no such helps;
and for some particular parts of it we have no light at all, or
what is more puzzling still, cross lights and discordant and con-
tradictory authorities.

408. In the present chapter our design is to collect such Plan of this
particulars as may help to complete our idea of the medieval
parliament in its formal aspect, to describe the method of sum-
moning, choosing and assembling the members ; to trace, as far

as we can, the process of initiation, discussion, and enactment,
and to mark the points up to which the theory of privilege
had grown at the close of our period. It will be no part of our
plan to venture into the more dangerous regions of modem pro-
cedure ; but where in the earlier forms the germs of such later
developments are discoverable it will be sufficient to indicate
them. In pursuance of this plan our first step is to recapitulate
the points of interest involved in the determination of the time,
place, and forms of summons, for parliament ; the next step is
to describe the process of election of the elected members ; we
can then proceed to the consideration of the session itself, the
arrangement of the houses, their transaction of business, inter-
course, prorogation and dissolution ; and close the survey with
a brief notice of the history of privilege.

409. The determination of the time at which the parliament Choice of the
was to be held rested prim^ily with the king ; but the choice of meeting of
the particular day or season of the year, as well as the frequency ^^ **°^^° *
or infrequency of sessions, and the use of adjournment or pro-
rogation, were variously decided according to the character which

the assembly possessed at the several stages of its growth. The
witenagemotes of the Anglo-Saxon kings, if we may draw a
general conclusion from the scanty indications of particular
charters, were mostly held on the great festivals of the church
or at the end of harvest * ; the great councils of the Norman
kings generally, although not invariably, coincided with the

' VoL i. pp. 123, 134; notes i, 1, 3.



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378 Constitutional History, [chap.

Coincidence crown- wearing days at Cliristmas, Easter, and Whitsuntide ^ ;

of legal and , , / . , .1 . . , . ,

pariiamen- and, as long as the national council retained as its most pro-
minent feature the character of a court of justice, so long it
must have been almost necessary that it should meet on fixed
days of the year. That character it retained until the repre-
sentation of the commons came to be recognised as an indis-
pensable requisite for a legal parliament, and the name of
parliament came to be finally restricted to the assembly of the
three estates. This date can scarcely be placed earlier than the
beginning of the reign of Edward HI, when the distinction was
completely drawn between a Great Council, however summoned
and however constituted, and the regular parliament But even
after this date, although the administration of justice had ceased
to form the most important part of the public business, and the
granting of supplies, presentation of petitions, and discussions of
national policy, were matters which required punctuality and
certainty much less than the administration of justice, the
influence of custom, and the same reasons of convenience which
had originally assigned days and seasons for legal proceedings,
continued to affect the choice of a day for parliament Under
Henry II and his successors down to Henry HE, the national
councils met as well on the great festivals as on the terminal
days of the law courts ; but irregularly and not exclusively on
those days. The provisionary government of 1258 fixed three
days in the year, which have a less distinct reference to these
points of time, the octave of Michaelmas, October 6, the morrow
of Candlemas, February 3, and the ist of June, three weeks
before the feast of S. John the Baptist at Midsummer ^ : by this
expedient the awkwardness of depending on the moveable
feasts was avoided. That arrangement however was short-lived.
Edward I, during the early part of his reign, seems to have
followed the terminal days of the courts of law.

Legal tensB. These terminal days had their historical origin in the distinction
made by the Eoman lawyers between dM9 fasH and dies nefasti,
the former being the days on which the courts and comitia might

> Vd. i. pp. 369, 370.
' See above, voL ii. p. 76.



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XX.] Origin of Terms, 379

be held, the dies nefasti those on which they were forbidden. The law
After the adoption of Christianity the more solemn seasons of vacations,
the church took the place of the old dies nefasti, and were set
apart from legal work by the civil and canon law \ The dis-
tinction is noted in the compilation called the Laws of Edward the
Confessor, which describes the custom of England as it existed
under the justiciar Glanvill ; according to this rule the peace of
God and the church was to be observed from the beginning of
Advent to the octave of the Epiphany, from Septuagesima to
the octave of Easter, and from the Ascension to the octave of
Pentecost, besides Sundays and holy days ^. Under these desig-
nations the later term days are denoted; the octave of Epiphany
is the feast of S. Hilary, from which the Hilary or Lent term
begins; and the octaves of Easter and Whitsuntide have the
same relation to the Easter and Trinity terms. The ending of
the third and the beginning of the fourth term depended on the
harvest ; an operation so important that not only the schools
and the law courts were closed during its continuance, but even
civil war was suspended by common consent of the parties, and
the parliament itself was prorogued or adjourned during the
vacation. The exact days for beginning and ending business
varied in the courts and universities, and were from time to
time altered by legislation. For parliamentary business the
fourth or Michaelmas term may be considered to have begun on
the quindene of S. Michael, October 1 3th, the feast of the trans-
lation of S. Edward the Confessor, a memorable and critical
day on more than one occasion of English history.

Custom or convenience seems in quiet times to have pre- Conveinen(v
scribed these days as fitting days for parliaments ; and no doubt the tera"'^
the lawyers, who formed an important element in the house of ^
commons, found the coincidence of the parliamentary and legal
days of business very opportune for their own interests; the
barons and bishops who had attended the court on the great fes-
tivals may also have found it convenient to remain in town after

^ See Reliquiae Spelmannianae, pp. 69 sq ; Nicolas, Chronology of History,

p. 383.
* LI. Edw. Conf. § 2 ; cf. Canute, Eccl. § 17; Ethelred, v. § 19, vi. § 25.



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380 Constitutional History. [chap.

Coincidence the conclusion of the festivities, instead of making an additional

ol the par- , ' ^

liomentary joumey. Anyhow, in the great majority of cases throughout

terms, the middle ages, the day of parliamentary summons is fixed with

reference to the beginning of the Law Terms. In less quiet

times it was impossible to observe such a rule; and, after

long prorogations and less frequent elections had become usual,

the old days were less regarded. But the importance of the

autumnal vacation always made itself felt; Edward III in 1352

summoned only half the house of commons, that harvest might

not be neglected^; and the same cause, which in 12 15 stayed

the outbreak of war until the harvest was housed, led to the

prorogation of parliaments under Henry VI and Edward IV from

July to November, the harvest apparently falling later in the

year as time went on and tillage increased.

Annual par- 4 10. As the political functions of the national parliament
Iiaments. ^ , , *^

became more prominently important than the judicial work of

the king in his full council, it became a point of public security
that regular and fairly frequent parliaments should be held;
and the demand for annual parliaments accordingly emerges
very soon after the final admission of representatives of the
Ordered by commons. We have in a former chapter noted the political
bearing and history of this demand ^ The ordinances of 131 1
and acts of parliament in 1330 and 1362 established the rule
that parliaments should be held annually and oftener if it were
found necessary. The greatest number of sessions held in one
year was four, in the year 1328'. As each session involved a
fresh election, and as the wages of the members formed a heavy
item in local taxation, it is no wonder that, except in times of
political excitement, even the annual parliaments became some-
Neglect of what burdensome. Before the close of the fourteenth century

the rule.

the law was frequently transgressed, and two or three years
passed without a session. There was no parliament held in
1364, 1367, 1370, or between 1373 and 1376 : under Kichard 11,
the years 1387, 1389, 1392 and 1396, are marked by a suspen-
sion of the national action; under Henry IV there was no

' See above, vol. ii. p. 408 ; Lords' Report, iv. 593.

' See above, vol. ii. p. 613. ' Vol. ii. p. 371.



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XX.] Notice of ParliamenL 381

parliament between 1407 and 1410 ; under Henry V there was Long »«-
at least one session each year. Under the Lancastrian kings the pitmiga-
sessions had become so much longer than in earlier times that
an intermission of a year was often more or less welcome ; but
the longer intervals begin contemporaneously with the family
troubles; no parliament was held in 1440 or 1441, in 1443 or
1444 ; the parliament called in February 1445 sat by adjourn-
ment until April 1446 ; there was no session in 1448, 1452, 1457
or 1458. Edward IV held only six parliaments, or appealed to
the country only six times during a reign of two and twenty years.

411. The great charter had prescribed for the holding of ^^^^^Jj^^^f!
commune consilium a summons, to be issued at least forty days ™®?^ ^^
before the day of meeting. This rule was regarded as binding
in the reign of Elizabeth^, and was observed until the union
with Scotland; but not without occasional exceptions. The
famous parliament of Simon de llontfort was called at twenty-
seven days' notice*; the almost equally fiamous parliament of
1294 at thirty-five ^ which is the modem rule; in most other
cases under Edward I and Edward U the notices are much
longer. The summons for the parliament of 1327, in which
Edward II was deposed, was issued thirty-five days before the
meeting*; in 1330 Edward III apologised for abridging thePewexcep-
notice to thirty-one days; business was pressing and he had rule,
taken the advice of the lords*; in 1352 the council, to which
only one knight of each shire was summoned, was called only
twenty-eight days beforehand •. Richard II invariably gave long
notices ; the parliament in which he was deposed was sum-
moned exactly forty days before his resignation, and the first
parliament of his successor, for which only seven days* warning
was given, consisted of the same members that were summoned
for the week before. These seem to be the only important

^ Sir T. Smith, Commonwealth ; see below, p. 468.

' Dec. 24 for Jan. 20 \ Select Charters, p. 406 ; Lords' Beport, iv. 34.

« Oct. 8 for Nov. 12 ; ibid. p. 60.

* Above, vol. ii. p. 360.

' Lords' Beport, i 492 ; the king apologised for the short notice in the
writ, stating that he acted with the assent of the prelates and magnates,
and that the act should not be a precedent to the damage of any.

• Lords' Beport, iv. 593.



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38:^ Constitutional History, [chap.

variations from the rule of Magna Carta; the notices vary
generally rather in excess than defect, but in many cases the
rule is exactly observed ^
Place ofpap- 412. A more ancient and uniform prescription than that
which affected the time for holding parliament regulated the
choice of the place of session. "Westminster was from the days
of Edward the Confessor the recognised home of the great
council of the nation as well as of the king. How this came
about, history does not record; it is possible that the mere
accident of the existence of the royal palace on the bank of the
Thames led to the foundation of the abbey, or that the pro-
pinquity of the abbey led to the choice of the place for a palace;
Thepa^ equal obscurity covers the origin of both. It is possible that
minster. under the new name of Westminster were hidden some of
the traditions of the old English places of councils, of Chelsea
or even of the lost Clovesho. But when the palace and
the abbey had ojrown up together, when Canute had lived
in the palace and Hardicanute had been buried in the abbey,
and when the life and death of the Confessor had invested
the two with almost equal sanctity, the abbey church became
the scene of the royal coronation, and the palace the centre of
Mjmones of all the work of government. The crown, the grave, the palace,
Confessor, the festival, the laws of king Edward, all illustrate the perpe-
tuity of a national sentiment typifying the continuity of the
national life. There the Conqueror kept his summer courts, and
William Rufus contemplated the building of a house of which
the great hall which now survives should be only one of the
Under the bed-chambers'. At Westminster Henry I held his councils *,

Norman , ,

kings. and Stei)hen is said to have founded the chapel of his patron

saint* within the palace. Although the courts continued to
attend on the king, they like him rested, when they did rest, at
Westminster ; there was the certain place where, according to
the great charter, the common pleas were to be held when they

^ After the union with Scotland the notice was given fifty days before-



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 39 of 68)