CHAPTER II.
[(1)] In the great poetical manifesto of the patriotic party in Henry the Third’s reign, printed in Wright’s Political Songs of England (Camden Society, 1839), there seems to be no demand whatever for new laws, but only for the declaration and observance of the old. Thus, the passage which I have chosen for one of my mottoes runs on thus:—
“Igitur communitas regni consulatur;
Et quid universitas sentiat sciatur,
Cui leges propriæ maxime sunt notæ.
Nec cuncti provinciæ sic sunt idiotæ,
Quin sciant plus cæteris regni sui mores,
Quos relinquant posteris hii qui sunt priores.
Qui reguntur legibus magis ipsas sciunt;
Quorum sunt in usibus plus periti fiunt;
Et quia res agitur sua, plus curabunt,
Et quo pax adquiritur sibi procurabunt.”
[(2)] On the renewal of the Laws of Eadward by William, see Norman Conquest, iv. 324. Stubbs, Documents, 25. It should be marked that the Laws of Eadward were again confirmed by Henry the First (see Stubbs, 90-99), and, as the Great Charter grew out of the Charter of Henry the First produced by Archbishop Stephen Langton in 1213, the descent of the Charter from the Laws of Eadward is very simple. See Roger of Wendover, iii. 263 (ed. Coxe). The Primate there distinctly says that he had made John swear to renew the Laws of Eadward. “Audistis quomodo, tempore quo apud Wintoniam Regem absolvi, ipsum jurare compulerim, quod leges iniquas destrueret et leges bonas, videlicet leges Eadwardi, revocaret et in regno faceret ab omnibus observari.” It must be remembered that the phrase of the Laws of Eadward or of any other King does not really mean a code of laws of that King’s drawing up, but simply the way of administering the Law, and the general political condition, which existed in that King’s reign. This is all that would be meant by the renewal of the Laws of Eadward in William’s time. It simply meant that William was to rule as his English predecessors had ruled before him. But, by the time of John, men had no doubt begun to look on the now canonized Eadward as a lawgiver, and to fancy that there was an actual code of laws of his to be put in force.
On the various confirmations of the Great Charter, see Hallam, Middle Ages, ii. 111.
[(3)] Macaulay, ii. 660. “When they were told that there was no precedent for declaring the throne vacant, they produced from among the records of the Tower a roll of parchment, near three hundred years old, on which, in quaint characters and barbarous Latin, it was recorded that the Estates of the Realm had declared vacant the throne of a perfidious and tyrannical Plantagenet.” See more at large in the debate of the Conference between the Houses, ii. 645.
[(4)] See Kemble, Saxons in England, ii. 186—194. This, it will be remembered, is admitted by Professor Stubbs. See above, note 48 to Chapter I.
[(5)] See Kemble, ii. 199, 200, and compare page 194.
[(6)] I have collected these passages in my History of the Norman Conquest, i. 591.
[(7)] On the acclamations of the Assembly, see note 19 to Chapter I. I suspect that in all early assemblies, and not in that of Sparta only, κρίνουσι βοῇ καὶ οὐ ψήφῳ (Thuc. i. 87). We still retain the custom in the cry of “Aye” and “No,” from which the actual vote is a mere appeal, just like the division ordered by Sthenelaïdas when he professed not to know on which side the shout was.
[(8)] See Norman Conquest, i. 100, and History of Federal Government, i. 263.
[(9)] See Norman Conquest, iv. 694. In this case the Chronicler, under the year 1086, distinguishes two classes in the Assembly, “his witan and ealle Þa landsittende men Þe ahtes wæron ofer eall Engleland.” These “landsittende men” were evidently the forerunners of the “libere tenentes,” who, whether their holdings were great or small, kept their place in the early Parliaments. See Hallam, ii. 140-146, where will be found many passages showing the still abiding traces of the popular constitution of the Assembly.
[(10)] The practice of summoning particular persons can be traced up to very early times. See Kemble, ii. 202, for instances in the reign of Æthelstan. On its use in later times, see Hallam, ii. 254-260; and on the irregularity in the way of summoning the spiritual peers, ii. 253.
The bearing of these precedents on the question of life peerages will be seen by any one who goes through Sir T. E. May’s summary, Constitutional History, i. 291-298.
[(11)] Sismondi, Histoire des Français, v. 289: “Ce roi, le plus absolu entre ceux qui ont porté la couronne de France, le moins occupé du bien de ses peuples, le moins consciencieux dans son observation des droits établis avant lui, est cependant le restaurateur des assemblées populaires de la France, et l’auteur de la représentation des communes dans les états généraux.” See Historical Essays, 45.
[(12)] See the history of Stephen Martel in Sismondi, Histoire des Français, vol. vi. cap. viii. ix., and the account of the dominion of the Butchers, vii. 259, and more at large in Thierry’s History of the Tiers-État, capp. ii. iii.
[(13)] The Parliament of Paris, though it had its use as some small check on the mere despotism of the Crown, can hardly come under the head of free institutions. France, as France, under the old state of things, cannot be said to have kept any free institutions at all; the only traces of freedom were to be found in the local Estates which still met in several of the provinces. See De Tocqueville, Ancien Régime, 347.
[(14)] The thirteenth century was the time when most of the existing states and nations of Europe took something like their present form and constitution. The great powers which had hitherto, in name at least, divided the Christian and Mahometan world, the Eastern and Western Empires and the Eastern and Western Caliphates, may now be looked on as practically coming to an end. England, France, and Spain began to take something like their present shape, and to show the beginnings of the characteristic position and policy of each. The chief languages of Western Europe grew into something like their modern form. In short, the character of this age as a time of beginnings and endings might be traced out in detail through the most part of Europe and Asia.
[(15)] Dr. Pauli does not scruple to give him this title in his admirable monograph, “Simon von Montfort Graf von Leicester, der Schöpfer des Hauses der Gemeinen.” The career of the Earl should be studied in this work, and in Mr. Blaauw’s “Barons’ War.”
“Numquam libertas gratior exstat
Quam sub rege pio.”—Claudian, ii. Cons. Stil. 114.
[(17)] Macaulay, i. 15. “England owes her escape from such calamities to an event which her historians have generally represented as disastrous. Her interest was so directly opposed to the interest of her rulers that she had no hope but in their errors and misfortunes. The talents and even the virtues of her six first French Kings were a curse to her. The follies and vices of the seventh were her salvation.... England, which, since the battle of Hastings, had been ruled generally by wise statesmen, always by brave soldiers, fell under the dominion of a trifler and a coward. From that moment her prospects brightened. John was driven from Normandy. The Norman nobles were compelled to make their election between the island and the continent. Shut up by the sea with the people whom they had hitherto oppressed and despised, they gradually came to regard England as their country, and the English as their countrymen. The two races so long hostile, soon found that they had common interests and common enemies. Both were alike aggrieved by the tyranny of a bad King. Both were alike indignant at the favour shown by the court to the natives of Poitou and Aquitaine. The great grandsons of those who had fought under William and the great grandsons of those who had fought under Harold began to draw near to each other in friendship; and the first pledge of their reconciliation was the Great Charter, won by their united exertions, and framed for their common benefit.”
[(18)] I have tried to work out the gradual character of the transfer of lands and offices under William in various parts of the fourth volume of my History of the Norman Conquest; see especially p. 22, et seqq. The popular notion of a general scramble for everything gives a most false view of William’s whole character and position.
[(19)] See Norman Conquest, i. 176.
[(20)] This is distinctly asserted in the Dialogus de Scaccario (i. 10), under Henry the Second: “Jam cohabitantibus Anglicis et Normannis, et alterutrum uxores ducentibus vel nubentibus, sic permixtæ sunt nationes, ut vix discerni possit hodie, de liberis loquor, quis Anglicus quis Normannus sit genere; exceptis duntaxat ascriptitiis qui villani dicuntur, quibus non est liberum obstantibus dominis suis a sui statûs conditione discedere.”
[(21)] The Angevin family are commonly known as the Plantagenets; but that name was never used as a surname till the fifteenth century. The name is sometimes convenient, but it is not a really correct description, like Tudor and Stewart, both of which were real surnames, borne by the two families before they came to the Crown. In the almanacks the Angevins are called “The Saxon line restored,” a name which gives a false idea, though there can be no doubt that Henry the Second was fully aware of the advantages to be drawn from his remote female descent from the Old-English Kings. The point to be borne in mind is that the accession of Henry is the beginning of a distinct dynasty which could not be called either Norman or English in any but the most indirect way.
[(22)] I do not remember anything in any of the writers of Henry the Second’s time to justify the popular notions about “Normans and Saxons” as two distinct and hostile bodies. Nor do we as yet hear many complaints of favour being shown to absolute foreigners in preference to either, though it is certain that many high preferments, especially in the Church, were held by men who were not English in either sense. The peculiar position of Henry the Second was something like that of the Emperor Charles the Fifth, that of a prince ruling over a great number of distinct states without being nationally identified with any of them. Henry ruled over England, Normandy, and Aquitaine, but he was neither English, Norman, nor Gascon.
[(23)] That is the greater, the continental, part of the Duchy. The insular part of Normandy, the Channel Islands, was not lost, and it still remains attached to the English Crown, not as part of the United Kingdom, but as a separate dependency. See Norman Conquest, i. 187.
[(24)] See Norman Conquest, i. 310, 367; and on the appointment of Bishops and Abbots, i. 503, ii. 66, 571.
[(25)] See the Ordinance in Norman Conquest, iv. 392. Stubbs, Select Charters, 81.
[(26)] See Norman Conquest, iii. 317.
[(27)] It should be remembered that the clerical immunities which were claimed in this age were by no means confined to those whom we should now call clergymen, but that they also took in that large class of persons who held smaller ecclesiastical offices without being what we should call in holy orders. The Church also claimed jurisdiction in the causes of widows and orphans, and in various cases where questions of perjury, breach of faith, and the like were concerned. Thus John Bishop of Poitiers writes to Archbishop Thomas (Giles, Sanctus Thomas, vi. 238) complaining that the King’s officers had forbidden him to hear the causes of widows and orphans, and also to hear causes in matters of usury: “prohibentes ne ad querelas viduarum vel orphanorum vel clericorum aliquem parochianorum meorum in causam trahere præsumerem super quacumque possessione immobili, donec ministeriales regis, vel dominorum ad quorum feudum res controversiæ pertineret, in facienda justitia eis defecissent. Deinde ne super accusatione fœnoris quemquam audirem.” This gives a special force to the acclamations with which Thomas was greeted on his return as “the father of the orphans and the judge of the widows:” “Videres mox pauperum turbam quæ convenerat in occursum, hos succinctos ut prævenirent et patrem suum applicantem exciperent, et benedictionem præriperent, alios vero humi se humiliter prosternentes, ejulantes hos, plorantes illos præ gaudio, et omnes conclamantes, Benedictus qui venit in nomine Domini, pater orphanorum et judex viduarum! et pauperes quidem sic.” Herbert of Bosham, Giles, Sanctus Thomas, vii. 315, cf. 148. See more in Historical Essays, 99.
[(28)] On the cruel punishments inflicted in the King’s courts Herbert of Bosham is very emphatic in more than one passage. He pleads (vii. 101) as a merit of the Bishops’ courts that in them no mutilations were inflicted. Men were punished there “absque omni mutilatione vel deformatione membrorum.” But he by no means claims freedom from mutilation as a mere clerical privilege; he distinctly condemns it in any case. “Adeo etiam quod ordinis privilegium excludat cauterium: quam tamen pœnam communiter inter homines etiam jus forense damnat: ne videlicet in homine Dei imago deformetur.” (vii. 105.) A most curious story illustrative of the barbarous jurisprudence of the time will be found in Benedict’s Miracula Sancti Thomæ, 184.
[(29)] One of the Constitutions of Clarendon forbade villains to be ordained without the consent of their lords. “Filii rusticorum non debent ordinari absque assensu domini de cujus terra nati dignoscuntur” (Stubbs, Select Charters, 134). On the principles of feudal law nothing can be said against this, as the lord had a property in his villain which he would lose by the villain’s ordination. The prohibition is noticed in some remarkable lines of the earliest biographer of Thomas, Garnier of Pont-Sainte-Maxence (La Vie de Saint Thomas le Martyr, Paris, 1859, p. 89), where he strongly asserts the equality of gentleman and villain before God:—
“Fils à vilains ne fust en nul liu ordenez
Sanz l’otrei sun seigneur de cui terre il fu nez.
Et deus à sun servise nus a tuz apelez!
Mielz valt filz à vilain qui est preux e senez,
Que ne feit gentilz hum failliz et debutez.”
Thomas himself was not the son of a villain, but his birth was such that the King could sneer at him as “plebeius quidam clericus.”
[(30)] We are not inclined to find fault with such an appointment as that of Stephen Langton; still his forced election at the bidding of Innocent was a distinct breach of the rights of the King, of the Convent of Christ Church, and of the English nation generally. See the account of his election in Roger of Wendover, iii. 212; Lingard, ii. 314; Hook’s Archbishops, ii. 668.
[(31)] See the Bulls and Letters by which Innocent professed to annul the Great Charter in Roger of Wendover, iii. 323, 327; the excommunication of the Barons in iii. 336; and the suspension of the Archbishop in iii. 340.
[(32)] There is a separate treatise on the Miracles of Simon of Montfort, printed along with Rishanger’s Chronicle by the Camden Society, 1840.
[(33)] I think I may safely say that the only royalist chronicler of the reign of Henry the Third is Thomas Wykes, the Austin Canon of Osney. There is also one poem on the royalist side, to balance many on the side of the Barons, among the Political Songs published by the Camden Society, 1839, page 128.
Letters to Earl Simon and his Countess Eleanor form a considerable part of the letters of Robert Grosseteste, published by Mr. Luard for the Master of the Rolls. Matthew Paris also (879, Wats) speaks of him as “episcopus Lincolniensis Robertus, cui comes tamquam patri confessori exstitit familiarissimus.” This however was in the earlier part of Simon’s career, before the war had broken out. The share of Bishop Walter of Cantilupe, who was present at Evesham and absolved the Earl and his followers, will be found in most of the Chronicles of the time. It comes out well in the riming Chronicle of Robert of Gloucester (ii. 558):—
“Þe bissop Water of Wurcetre asoiled hom alle pere
And prechede hom, þat hii adde of deþ þe lasse fere.”
This writer says of the battle of Evesham:—
“Suich was þe morþre of Eivesham (vor bataile non it was).”
[(34)] This letter, addressed in 1247 to Pope Innocent the Fourth, will be found in Matthew Paris (721, Wats). It is written in the name of “universitas cleri et populi per provinciam Cantuariensem constituti,” and it ends, “quia communitas nostra sigillum non habet, præsentes literas signo communitatis civitatis Londinensis vestræ sanctitati mittimus consignatas.” Another letter in the same form follows to the Cardinals. There are two earlier letters in 1245 and 1246 (Matthew Paris, 666, 700), the former from the “magnates et universitas regni Angliæ,” the other in the name of Richard Earl of Cornwall (afterwards King of the Romans), Simon Earl of Leicester, and other Earls, “et alii totius regni Angliæ Barones, proceres, et magnates, et nobiles portuum maris habitatores, necnon et clerus et populus universus.” The distinct mention of the Cinque Ports, whose representatives in Parliament are still called Barons—the “nobiles” of the letter—should be noticed.
[(35)] The writer of the Gesta Stephani[(3)] distinctly attributes the election of Stephen to the citizens of London: “Majores igitur natu, consultuque quique provectiores, concilium coegere, deque regni statu, pro arbitrio suo, utilia in commune providentes, ad regem eligendum unanimiter conspiravere.” He then goes on with the details of the election. He is borne out by the Chronicle 1135: “Stephne de Blais com to Lundene and te Lundenisce folc him underfeng;” and by William of Malmesbury, Historia Novella, i. 11: “A Londoniensibus et Wintoniensibus in Regem exceptus est.” So again when the Legate, Henry Bishop of Winchester, holds a council for the election of the Empress Matilda, the citizens of London were summoned, and it is distinctly said that they held the rank of nobles or barons: “Londonienses (qui sunt quasi optimates, pro magnitudine civitatis, in Anglia).” “Londonienses, qui præcipui habebantur in Anglia, sicut proceres” (Historia Novella, iii. 45, 46). All this is exactly like the earlier elections of Kings before the Conquest.
[(36)] The words of the Charter 12-14 (Stubbs, 290) are: “Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, etc..... Et ad habendum commune consilium regni, de auxilio assidendo aliter quam in tribus casibus prædictis, vel de scutagio assidendo, summoneri faciemus archiepiscopos, episcopos, abbates, comites, et majores barones, sigillatim per litteras nostras; et præterea faciemus summoneri in generali, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite.” This is exactly like the entry in the Chronicle [1123], describing the summoning of a Witenagemót by Henry the First: “Da sone Þæræfter sende se kyng hise write ofer eal Englalande, and bed hise biscopes and hise abbates and hise Þeignes ealle Þet hi scolden cumen to his gewitenemot on Candelmesse deig to Gleawceastre him togeanes; and hi swa diden.”
[(37)] These first glimmerings of parliamentary representation were carefully traced out by Hallam (Middle Ages, ii. 146-152). They can now be more fully studied in the work of Professor Stubbs. On the summons in 1213 of four men for each shire besides “milites et barones” (“quatuor discretos homines de comitatu tuo illuc venire facias”), the Professor remarks [278]: “It is the first writ in which the ‘four discreet men’ of the county appear as representatives; the first instance of the summoning of the folkmoot to a general assembly by the machinery already used for judicial purposes.”
[(38)] On this subject the eighth chapter of Sir Francis Palgrave’s English Commonwealth should be studied.
[(39)] For the whole career of Simon I must again refer generally to Pauli and Blaauw. The great writ itself, dated at Worcester, December 14th, 1264, will be found in Rymer’s Fœdera, i. 449. It has often been noticed how small is the number of Earls and other lay Barons, and how unusually large the number of churchmen, who are summoned to this Parliament. The whole list will be found in Rymer. The parts of the writ which concern us stand thus:
“Item mandatum est singulis vicecomitibus per Angliam; quod venire faciant duos milites de legalioribus, probioribus et discretioribus militibus singulorum comitatuum, ad Regem London’ in octab’ prædictis, in formâ supradictâ.
“Item in formâ prædictâ scribitur civibus Ebor’, civibus Lincoln’, et cæteris burgis Angliæ; quod mittant in formâ prædictâ duos de discretioribus, legalioribus, et probioribus, tam civibus, quam burgensibus suis.
“Item in formâ prædictâ mandatum est baronibus, et probis hominibus Quinque Portuum.”
“This is often regarded as the origin of popular representation; but it is not in any sense entitled to that praise. The novelty was simply the assembling the representatives of the towns in conjunction with those of the counties; this was now done for the first time for the purpose of the national council.” Stubbs, 401.
[(40)] The account of this most remarkable trial, held on June 11th, 1252, is given in a letter from Simon’s intimate friend the famous Franciscan Adam Marsh (de Marisco) to Bishop Robert Grosseteste. The Latin text is printed in Mr. Brewer’s Monumenta Franciscana, p. 122, and there is an English translation in the Appendix to Mrs. Green’s Life of Countess Eleanor, English Princesses, ii. 447. Simon’s witnesses, knights and citizens, come “muniti litteris patentibus communitatis Burdegalensis, in quâ quasi totum robur Vasconiæ ad distringendum hostiles et fideles protegendum consistere dignoscitur,” setting forth how good Simon’s government was in every way, and how those who brought charges against him did it only because his strict justice had put a check on their misdoings. We may compare the words of the great poetical manifesto (Political Songs, 76).
“Seductorem nominant S. atque fallacem,
Facta sed examinant probantque veracem.”
[(41)] For the Londoners at Lewes let us take the account of an enemy. Thomas Wykes [148] tells us how the Earl set out, “glorians in virtute sua congregata baronum multitudine copiosa, Londoniensium innumerabili agmine circumcinctus, quia legitur stultorum infinitus est numerus.” Presently we read how the “Londoniensium innumera multitudo, bellorum ignara,” were put to flight by the Lord Edward very much after the manner of Prince Rupert.
[(42)] On the religious reverence paid to Earl Waltheof, see Norman Conquest, ii. 602. I have there referred to the office of Thomas of Lancaster, which will be found in Political Songs, 268. Some of the pieces are what we should think most daring parodies of parts of the Church Service, but we may be sure that what was intended was reverence and not irreverence. There is another parody of the same kind in honour of Earl Thomas, a little earlier back in the volume, p. 258. It was a matter of course that Thomas of Lancaster should be likened to Thomas of Canterbury.
“Gaude, Thoma, ducum decus, lucerna Lancastriæ,
Qui per necem imitaris Thomam Cantuariæ;
Cujus caput conculcatur pacem ob ecclesiæ,
Atque tuum detruncatur causa pacis Angliæ.”
[(43)] Let us take a Latin, a French, and an English specimen of the poems in which Simon’s death was lamented and his intercession implored.
“Salve, Symon Montis Fortis,
Totius flos militiæ,
Durus pœnas passus mortis,
Protector gentis Angliæ.
Sunt de sanctis inaudita
Cunctis passis in hac vita,
Quemquam passum talia;
Manus, pedes, amputari,
Caput, corpus, vulnerari,
Abscidi virilia.
Sis pro nobis intercessor
Apud Deum, qui defensor
In terris exstiteras.”—(Political Songs, 124.)
The French poem which follows directly in the collection is too long to copy in full. This is perhaps the most remarkable stanza, in which we again find the comparison with Thomas of Canterbury:—
“Mès par sa mort, le cuens Mountfort conquist la victorie,
Come ly martyr de Caunterbyr, finist sa vie;
Ne voleit pas li bon Thomas qe perist seinte Eglise,
Le cuens auxi se combati, e morust sauntz feyntise.
Ore est ocys la flur de pris, qe taunt savoit de guerre,
Ly quens Montfort, sa dure mort molt emplorra la terre.”
In this poem there is not, as in the Latin one, any direct prayer to the martyred Earl, but in the last stanza we read:—
“Sire Simoun ly prodhom, e sa compagnie,
En joie vont en ciel amount, en pardurable vie.”
The only English piece on these wars belongs to an earlier date, namely, the satirical poem against King Richard, how the one English Augustus
“Makede him a castel of a mulne post;”
but we get verses on Simon’s death in the Chronicle of Robert of Gloucester (ii. 559):—
“& sir Simond was aslawe, & is folk al to grounde,
More murÞre are nas in so lute stounde.
Vor Þere was werst Simond de Mountfort aslawe, alas!
& sir Henri is sone, Þat so gentil knizt was.
******
& among alle oÞere mest reuÞe it was ido,
Þat sir Simon Þe olde man demembred was so.”
He then goes on with the details of the dismemberment, of which a picture may be seen opposite p. 254 of Mr. Blaauw’s book, and then goes on with the lines which I have before quoted:—
“Suich was Þe morÞre of Eivesham (vor bataile non it was),
And Þer wiÞ Jesu Crist wel vuele ipaied was,
As he ssewede bitokninge grisliche and gode,
As it vel of him sulue, Þo he deide on Þe rode,
Þat Þoru al Þe middelerd derk hede Þer was inou.”
[(44)] On the occasional and irregular summoning of the borough members between 1265 and 1295 see Hallam, Middle Ages, ii. 160, 165, and more fully in Stubbs, Select Charters, 420, 427, where the gradual developement of parliamentary representation is treated as it has never been treated before, with a full citation of the authorities. The language in which the chroniclers speak of the constitution of the early Parliaments of Edward is as vague as that in which our ancient Gemóts are described. Sometimes they speak only of “proceres” and the like; sometimes they distinctly mention the popular element. Curiously enough, the official language is sometimes more popular than that of the annalists. Thus the Winchester Annals, recording the Statute of Westminster in 1273, call the Assembly which passed it a “communis convocatio omnium magnatum regni,” though it incidentally implies the presence of other persons, “quamplures de regno qui aliqua feoda de corona regia tenuerunt.” But the preamble of the Statute itself records the “assentement des erceveskes, eveskes, abbes, priurs, contes, barons, et la communaute de la tere ileokes somons.” So in the later Parliament of the same year the Annals speak only of the “communis consensus archiepiscoporum, comitum, et baronum,” while the official description is “prælati, comites, barones, et alii de regno nostro.” But in an earlier Assembly, that held in 1273, before Edward had come back to England, the same Winchester Annals tell us how “convenerunt archiepiscopi et episcopi, comites et barones, et de quolibet comitatu quatuor milites et de qualibet civitate quatuor.” This and the summons to the Parliament of 1285, which sat in judgement on David of Wales (Stubbs, 453, 457), seem the most distinct cases of borough representation earlier than 1295, since which time the summoning of the borough members has gone on regularly. See Stubbs, 473. Mr. Stubbs’ remarks on the Assemblies of “the transitionary period” in pp. 465, 469 should be specially studied.
[(45)] The history of the resistance of these two Earls to King Edward, which led to the great Confirmation of the Charters in 1297, will be found in all the histories of the time, old and new. See also Stubbs, 431, 479. I feel no difficulty in reconciling respect for Edward with respect for the men who withstood him. The case is well put by Stubbs, 34, 35.
[(46)] The exact value of the document commonly known as the statute “De Tallagio non concedendo” is discussed by Professor Stubbs, p. 487. It is perhaps safest to look on it, like many of the earlier collections of laws, not indeed as an actual statute, but as good evidence of a principle which, from the time of the Confirmation of the Charters, has been universally received. The words are—
“Nullum tallagium vel auxilium per nos vel hæredes nostros de cetero in regno nostro imponatur seu levetur, sine voluntate et assensu communi archiepiscoporum, episcoporum et aliorum prælatorum, comitum, baronum, militum, burgensium, et aliorum liberorum hominum in regno nostro.” This, it will be seen, is the same provision which I have already quoted (see above, Note 36) from the Great Charter of John, but which was left out in the Charter in the form in which it was confirmed by Henry the Third. See Stubbs, 330, 332, 336.
[(47)] I have said this before in Historical Essays, p. 41. On the strongly marked legal character of Edward’s age, and especially of Edward’s own mind, see Stubbs, 417.
[(48)] The great statute of treason of 25 Edward the Third (see the Revised Edition of the Statutes, i. 185) secures the life of the King, his wife, and his eldest son, and the chastity of his wife, his eldest daughter, and his eldest son’s wife. But the personal privilege goes no further. As the Law of England knows no classes of men except peers and commoners, it follows that the younger children of the King—the eldest is born Duke of Cornwall—are, in strictness of speech, commoners, unless they are personally raised to the peerage. I am not aware that either case has ever arisen, but I conceive that there is nothing to hinder a King’s son, not being a peer, from voting at an election, or from being chosen to the House of Commons, and I conceive that, if he committed a crime, he would be tried by a jury. Mere precedence and titles have nothing to do with the matter, though probably a good deal of confusion arises from the very modern fashion—one might almost say the modern vulgarism—of calling all the children of the King or Queen “Princes” and “Princesses.” As late as the time of George the Second uncourtly Englishmen were still found who eschewed the foreign innovation, and who spoke of the Lady Caroline and the Lady Emily, as their fathers had done before them.
Another modern vulgarism is that of using the word “royal”—“royal visit,” “royal marriage,” and so forth—when there is no royalty in the case, the person spoken of being a subject, perhaps a commoner.
[(49)] On the parliamentary position of the clergy see Hallam, Middle Ages, ii. 263. And as far as the reign of Edward the First is concerned, see the series of summonses in Stubbs, 442.
[(50)] On this important constitutional change, which was made in 1664, without any Act of Parliament, but by a mere verbal agreement between Archbishop Sheldon and Lord Chancellor Clarendon, see Hallam, Constitutional History, ii. 405.
[(51)] This is true on the whole, especially at the beginning of the institution of the States General, though there were also roturiers who were the immediate burgesses of the King. See Thierry, History of the Tiers Etat, i. 56 (Eng. trans.). It is in that work that the history of that branch of the States General should be studied.
[(52)] The question of one or two Chambers in an ordinary monarchy or commonwealth is altogether different from the same question under a Federal system. In England or France the question between one or two Chambers in the Legislature is simply a question in which of the two ways the Legislature is likely to do its work best. But in a Federal constitution, like that of Switzerland or the United States, the two Chambers are absolutely necessary. The double sovereignty, that of the whole nation and that of the independent and equal States which have joined together to form it, can be rightly represented only by having two Chambers, one of them, the Nationalrath or House of Representatives, directly representing the nation as such, and the other, the Ständerath or Senate, representing the separate sovereignty of the Cantons. In the debates early in 1872 as to the revision of the Swiss Federal Constitution, a proposal made in the Nationalrath for the abolition of the Ständerath was thrown out by a large majority.
[(53)] On the old Constitution of Sweden, see Laing’s Tour in Sweden.
[(54)] This common mistake and its cause are fully explained by Hallam, Middle Ages, ii. 237.
[(55)] “The two Houses had contended violently in 1675, concerning the appellate jurisdiction of the Lords; they had contended, with not less violence, in 1704, upon the jurisdiction of the Commons in matters of election; they had quarrelled rudely, in 1770, while insisting upon the exclusion of strangers. But upon general measures of public policy their differences had been rare and unimportant.” May’s Constitutional History, i. 307. The writer goes on to show why differences between the two Houses on important points have become more common in very recent times.
[(56)] The share of the Witan in early times in the appointment of Bishops, Ealdormen, and other great officers, need hardly be dwelled upon. For a debate in a Witenagemót of Eadward the Confessor on a question of peace or war, see Norman Conquest, ii. 90. For the like under Henry the Third, see the account in Matthew Paris, in the year 1242 which will be found in Stubbs, 359. The state of the case under Edward the Third is discussed by Hallam, Middle Ages, ii. 184. See also May, ii. 86. But the most remarkable passage of all is one in the great poetical manifesto which I have several times quoted: it is there (Political Songs, 96) made one of the charges against Henry the Third that he wished to keep the appointment of the great officers of state in his own hands. The passage is long, but it is well worth quoting at length.
“Rex cum suis voluit ita liber esse;
Et sic esse debuit, fuitque necesse
Aut esse desineret rex, privatus jure
Regis, nisi faceret quidquid vellet; curæ
Non esse magnatibus regni quos præferret
Suis comitatibus, vel quibus conferret
Castrorum custodiam, vel quem exhibere
Populo justitiam vellet, et habere
Regni cancellarium thesaurariumque.
Suum ad arbitrium voluit quemcumque,
Et consiliarios de quacumque gente,
Et ministros varios se præcipiente,
Non intromittentibus se de factis regis
Angliæ baronibus, vim habente legis
Principis imperio, et quod imperaret
Suomet arbitrio singulos ligaret.”
[(57)] Take for example the Act passed after Edward the Fourth’s success at Towton. Rot Parl. v. 466. Among other things, poor Henry the Sixth is not only branded as an usurper, but is charged with personally stirring up the movement in the North, which led to the battle of Wakefield and the death of Richard Duke of York. “The seid Henry Usurpour, late called Kyng Henry the Sixt, contynuyng in his olde rancour & malice, usyng the fraude & malicious disceit & dissimulacion ayenst trouth & conscience, that accorde not with the honoure of eny Cristen Prynce, ... with all subtill ymaginacions & disceitfull weyes & meanes to hym possible, intended & covertely laboured, excited & procured the fynal destruction, murdre & deth of the seid Richard Duc, and of his Sonnes, that is to sey, of oure seid nowe Soverayne Lord Kyng Edward the fourth, then Erle of Marche, & of the noble Lord Edmund Erle of Ruthlande; & for th’ execution of his dampnable & malicious purpose, by writing & other messages, mowed, excited, & stured therunto the Duks of Excestr’ & Somerset, & other lordes beyng then in the North parties of this Reame.”
[(58)] This statute was passed in 8 Henry VI. A.D. 1420. The complaint which it makes is well worth notice, and shows the reactionary tendencies of the time. The county elections had been made by “very great, outrageous, and excessive number of people dwelling within the same counties, of which most part was people of small substance, and of no value, whereof every of them pretended a voice equivalent, as to such elections to be made, with the most worthy knights and esquires dwelling within the same counties.” To hinder “the manslaughters, riots, batteries, and divisions,” which were likely to take place—it is not said that they had taken place—no one is to be allowed to vote who has not “free land or tenement to the value of forty shillings by the year at the least above all charges.” It is also provided that both the electors and the elected are to be actually resident in the county. The original French is worth quoting.
“Item come lez eleccions dez Chivalers des Countees esluz a venir as parlements du Roi en plusours Countees Dengleterre, ore tarde ount este faitz par tro[~p] graunde & excessive nombre dez gents demurrantz deinz mesmes les Countes, dount la greindre partie estoit par gentz sinon de petit avoir ou de null valu, dount chescun pretende davoir voice equivalent quant a tielx eleccions faire ove les plius valantz chivalers ou esquiers demurrantz deins mesmes les Countes; dount homicides riotes bateries & devisions entre les gentiles & autres gentz de mesmes les Countees verisemblablement sourdront & seront, si covenable remedie ne soit purveu en celle partie: Notre seigneur le Roy considerant les premisses ad pourveu & ordene par auctorite de cest parlement que les Chivalers des Countes deins le Roialme Dengleterre, a esliers a venir a les parlementz en apres atenirs, soient esluz en chescun Counte par gentz demurrantz & receantz en icelles dount chescun ait frank tenement a le valu de xl s. par an al meins outre les reprises; & que ceux qui seront ensy esluz soient demurrantz & receantz deins mesmes les Countes.” Revised Statutes, i. 306.
The necessity of residence in the case of either electors or representatives was repealed by 14 Geo. III. c. 58.
The statute goes on to give the Sheriff power to examine the electors on oath as to the amount of their property. It also gives the Judges of Assize a power foreshadowing that of our present Election Judges, that of inquiring into false returns made by the Sheriff.
Another statute of the same kind was passed later in the same reign, 23 Henry VI. A.D. 1444-5, from which it appears that the knights of the shire were ceasing to be in all cases knights in the strict sense, and that it was beginning to be found needful to fence them about with oligarchic restrictions.
“Issint que lez Chivalers dez Counteez pour le parlement en après a esliers so ent notablez Chivalers dez mesmez lez Counteez pour lez queux ils serront issint esluz, ou autrement tielx notablez Esquiers gentils homez del Nativite dez mesmez lez Counteez comme soient ablez destre Chivalers; et null home destre tiel Chivaler que estoise en la degree de vadlet et desouth.” Revised Statutes, i. 346.
Every enactment of this kind bears witness to the growth of the power of the Commons, and to the endeavours of the people to make their representation really popular.
[(59)] Take for instance the account given by the chronicler Hall (p. 253) of the election of Edward the Fourth.
“After the lordes had considered and weyghed his title and declaracion, they determined by authoritie of the sayd counsaill, for as much as kyng Henry, contrary to his othe, honor and agreement, had violated and infringed, the order taken and enacted in the last Parliament, and also, because he was insufficient to rule the Realme, & inutile to the common wealth, & publique profite of the pore people, he was therefore by the aforesayed authoritie, depriued & deiected of all kyngly honor, & regall souereigntie. And incontinent, Edward erle of Marche, sonne and heyre to Richard duke of Yorke, was by the lordes in the sayd counsaill assembled, named, elected, & admitted, for kyng & gouernour of the realme; on which day, the people of the erles parte, beyng in their muster in sainct Ihons felde, & a great number of the substanciall citezens there assembled, to behold their order: sodaynly the lord Fawconbridge, which toke the musters, wisely declared to the multitude, the offences & breaches of the late agremente done & perpetrated by kyng Henry the vi. & demaunded of the people, whether they woulde haue the sayd kyng Henry to rule & reigne any lenger ouer them: To whome they with a whole voyce, aunswered, nay, nay. Then he asked them, if they would serue, loue, & obey the erle of March as their earthly prince & souereign lord. To which question they aunswered, yea, yea, crieng, king Edward, with many great showtes and clappyng of handes.... The erle, ... as kyng, rode to the church of sainct Paule, and there offered. And after Te deum song, with great solempnitie, he was conueyed to Westmynster, and there set in the hawle, with the scepter royall in his hand, where to all the people which there in a great number were assembled, his title and clayme to the croune of England, was declared by, ii. maner of ways: the firste, as sonne and heyre to duke Richard his father, right enheritor to the same; the second, by aucthoritie of Parliament and forfeiture committed by, kyng Henry. Wherupon it was agayne demaunded of the commons, if they would admitte, and take the sayd erle as their prince and souereigne lord, which al with one voice cried, yea, yea.... On the morow he was proclaymed kyng by the name of kyng Edward the iiij. throughout the citie.”
This was in Lent 1461, before the battle of Towton. Edward was crowned June 29th in the same year. The same chronicler describes the election or acknowledgement of Richard the Third, p. 372.
[(60)] One special sign of the advance of the power of Parliament in the fifteenth century was the practice of bringing in bills in the form of Statutes ready made. Hitherto the Acts of the Commons had taken the form of petitions, and it was sometimes found that, after the Parliament had broken up, the petitions had been fraudulently modified. They now brought in bills, which the King accepted or rejected as they stood. See Hallam, Middle Ages, ii. 222.
[(61)] Macaulay, i. 38. “The knight of the shire was the connecting link between the baron and the shopkeeper. On the same benches on which sate the goldsmiths, drapers, and grocers who had been returned to Parliament by the commercial towns, sate also members who, in any other country, would have been called noblemen, hereditary lords of manors, entitled to hold courts and to bear coat armour, and able to trace back an honourable descent through many generations. Some of them were younger sons and brothers of great lords. Others could boast even of royal blood. At length the eldest son of an Earl of Bedford, called in courtesy by the second title of his father, offered himself as a candidate for a seat in the House of Commons, and his example was followed by others. Seated in that house, the heirs of the grandees of the realm naturally became as zealous for its privileges as any of the humble burgesses with whom they were mingled.”
Hallam remarks (ii. 250) that it is in the reign of Edward the Fourth that we first find borough members bearing the title of Esquire, and he goes on to refer to the Paston Letters as showing how important a seat in Parliament was then held, and as showing also the undue influences which were already brought to bear upon the electors. Since Hallam’s time, the authenticity of the Paston Letters has been called in question, but it has, I think, been fully established. Some of the entries are very curious indeed. In one (i. 96), without any date of the year, the Duchess of Norfolk writes to John Paston, Esquire, to use his influence at a county election on behalf of some creatures of the Duke’s: “It is thought right necessarie for divers causes þt my Lord have at this tyme in the p’lement suche p’sones as longe unto him and be of his menyall S’vaunts wherin we conceyve yor good will and diligence shal be right expedient.” The persons to be thus chosen for the convenience of the Duke are described as “our right wel-belovid Cossin and S’vaunts John Howard and Syr Roger Chambirlayn.” This is followed by a letter from the Earl of Oxford in 1455, much to the same effect. In ii. 98, we have a letter addressed to the Bailiff of Maldon, recommending the election of Sir John Paston on behalf of a certain great lady not named. The letter is worth giving in full.
“Ryght trusty frend I comand me to yow prey[~i]g yow to call to yor mynd that lyek as ye and I comonyd of it were necessary for my Lady and you all hyr Ser[~u]nts and te[~n]nts to have thys p’lement as for [~o]n of the Burgeys of the towne of Maldon syche a man of worchep and of wytt as wer towardys my seyd Lady and also syche on as is in favor of the Kyng and of the Lords of hys consayll nyghe abought hys p’sone. Sertyfy[~=i]g yow that my seid Lady for her parte and syche as be of hyr consayll be most agreeabyll that bothe ye and all syche as be hyr fermors and teñntys and wellwyllers shold geve your voyse to a worchepfull knyght and on’ of my Ladys consayll Sr John Paston whyche standys gretly in favore wt my Lord Chamberleyn and what my seyd Lord Chamberleyn may do wt the Kyng and wt all the Lordys of Inglond I trowe it be not unknowyn to you most of eny on man alyve. Wherefor by the meenys of the seyd Sr John Paston to my seyd Lord Chamberleyn bothe my Lady and ye of the towne kowd not have a meeter man to be for yow in the perlement to have yor needys sped at all seasons. Wherefor I prey yow labor all syche as be my Ladys ser[~=u]ntts tennts and wellwyllers to geve ther voyseys to the seyd Sr John Paston and that ye fayle not to sped my Ladys intent in thys mater as ye entend to do hyr as gret a plesur as if ye gave hyr an Cli [100l.] And God have yow in hys kep[~=i]g. Wretyn at Fysheley the xx day of Septebyr.—J. Arblaster.”
[(62)] On the effects of the reign of Charles the Fifth in Spain and his overthrow of the liberties of Castile, see the general view in Robertson, iii. 434, though in his narrative (ii. 186) he glorifies the King’s clemency. See also the first chapter of the sixth book of Prescott’s Philip the Second, and on the suppression of the constitution of Aragon by Philip, Watson, Philip the Second, iii. 223.
The last meeting of the French States-General before the final meeting in 1789 was that in 1614, during the minority of Lewis the Thirteenth. See Sismondi, xiii. 342.
[(63)] The legal character of William’s despotism I have tried to set forth almost throughout the whole of my fourth volume. See especially pp. 8, 617; but it is plain to everyone who has the slightest knowledge of Domesday. Nothing can show more utter ignorance of the real character of the man and his times than the idea of William being a mere “rude man of war,” as I have seen him called.
[(64)] On the true aspect of the reign of Henry the Eighth I have said something in the Fortnightly Review, September 1871.
[(65)] Both these forms of undue influence on the part of the Crown are set forth by Hallam, Constitutional History, i. 45, ii. 203. “It will not be pretended,” he says, “that the wretched villages, which corruption and perjury still hardly keep from famine [this was written before the Reform Bill, in 1827], were seats of commerce and industry in the sixteenth century. But the county of Cornwall was more immediately subject to a coercive influence, through the indefinite and oppressive jurisdiction of the stannary court. Similar motives, if we could discover the secrets of those governments, doubtless operated in most other cases.”
In the same page the historian, speaking of the different boroughs and counties which received the franchise in the sixteenth century, says, “It might be possible to trace the reason, why the county of Durham was passed over.” And he suggests, “The attachment of those northern parts to popery seems as likely as any other.” The reason for the omission of Durham was doubtless that the Bishoprick had not wholly lost the character of a separate principality. It was under Charles the Second that Durham city and county, as well as Newark, first sent members to Parliament. Durham was enfranchised by Act of Parliament, as Chester city and county—hitherto kept distinct as being a Palatinate—were by 34 & 35 Hen. VIII. c. 13. (Revised Statutes, i. 522.) Newark was enfranchised by a Royal Charter, the last case of that kind of exercise of the prerogative. Hallam, ii. 204.
[(66)] I do not know what was the exact state of Old Sarum in 1265 or in 1295, but earlier in the thirteenth century it was still the chief dwelling-place both of the Earl and of the Bishop. But in the reign of Edward the Third it had so greatly decayed that the stones of the Cathedral were used for the completion of the new one which had arisen in the plain.
[(67)] On the relations between Queen Elizabeth and her Parliaments, and especially for the bold bearing of the two Wentworths, Peter and Paul, see the fifth chapter of Hallam’s Constitutional History, largely grounded on the Journals of Sir Simonds D’Ewes. The frontispiece to D’Ewes’ book (London, 1682) gives a lively picture of a Parliament of those days.
[(68)] On the relations between the Crown and the House of Commons under James the First, see the sixth chapter of Hallam’s Constitutional History, and the fifth chapter of Gardner’s History of England from 1603 to 1616.