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$Title{History Of Europe During The Middle Ages
Part XIII}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XIII

     There is no great difficulty in answering the question why the deputies
of boroughs were finally and permanently ingrafted upon parliament by Edward
I. ^y The government was becoming constantly more attentive to the wealth that
commerce brought into the kingdom, and the towns were becoming more
flourishing and more independent.  But chiefly there was a much stronger
spirit of general liberty and a greater discontent at violent acts of
prerogative from the era of Magna Charta; after which authentic recognition of
free principles many acts which had seemed before but the regular exercise of
authority were looked upon as infringements of the subject's right.  Among
these the custom of setting tallages at discretion would naturally appear the
most intolerable; and men were unwilling to remember that the burgesses who
paid them were indebted for the rest of their possessions to the bounty of the
crown.  In Edward I.'s reign, even before the great act of Confirmation of the
Charters had rendered arbitrary impositions absolutely unconstitutional, they
might perhaps excite louder murmurs than a discreet administration would risk.
Though the necessities of the king, therefore, and his imperious temper often
led him to this course, ^z it was a more prudent counsel to try the
willingness of his people before he forced their reluctance.  And the success
of his innovation rendered it worth repetition.  Whether it were from the
complacency of the commons at being thus admitted among the peers of the
realm, or from a persuasion that the king would take their money if they
refused it, or from inability to withstand the plausible reasons of his
ministers, or from the private influence to which the leaders of every popular
assembly have been accessible, much more was granted in subsidies after the
representation of the towns commenced than had ever been extorted in tallages.

[Footnote y: These expressions cannot appear too strong.  But it is very
remarkable that to the parliament of 18 Edward III. the writs appear to have
summoned none of the towns, but only the counties.  Willis, Notit. Parliament.
vol. i.  Preface, p. 13.  Prynne's Register, 3d part, p. 144. Yet the citizens
and burgesses are once, but only once, named as present in the parliamentary
roll; and there is, in general, a chasm in place of their names, where the
different ranks present are enumerated.  Rot. Parl. vol. ii. p. 146.  A
subsidy was granted at this parliament; so that, if the citizens and burgesses
were really not summoned, it is by far the most violent stretch of power
during the reign of Edward III.  But I know of no collateral evidence to
illustrate or disprove it.]

[Footnote z: Tallages were imposed without consent of parliament in 17 E. I.
Wykes, p. 117; and in 32 E. I.  Brady's Hist. of Eng. vol. ii.  In the latter
instance the king also gave leave to the lay and spiritual nobility to set a
tallage on their own tenants.  This was subsequent to the Confirmatio
Chartarum, and unquestionably illegal.]

     To grant money was, therefore, the main object of their meeting; and if
the exigencies of the administration could have been relieved without
subsidies, the citizens and burgesses might still have sat at home and obeyed
the laws which a council of prelates and barons enacted for their government.
But it is a difficult question whether the king and the peers designed to make
room for them, as it were, in legislation; and whether the power of the purse
drew after it immediately, or only by degrees, those indispensable rights of
consenting to laws which they now possess.  There are no sufficient means of
solving this doubt during the reign of Edward I. The writ in 22 E. I. directs
two knights to be chosen cum plena potestate pro se et tota communitate
comitatus praedicti ad consulendum et consentiendum pro se et communitate
illa, his quae comites, barones, et proceres praedicti concorditer
ordinaverint in praemissis.  That of the next year runs, ad faciendum tunc
quod de communi consilio ordinabitur in praemissis.  The same words are
inserted in the writ of 26 E. I.  In that of 28 E. I. the knights are directed
to be sent cum plena potestate audiendi et faciendi quae ibidem ordinari
contigerint pro communi commodo. Several others of the same reign have the
words ad faciendum.  The difficulty is to pronounce whether this term is to be
interpreted in the sense of performing or of enacting; whether the
representatives of the commons were merely to learn from the lords what was to
be done, or to bear their part in advising upon it.  The earliest writ, that
of 22 E. I., certainly implies the latter; and I do not know that any of the
rest are conclusive to the contrary.  In the reign of Edward II. the words ad
consentiendum alone, or ad faciendum et consentiendum, begin; and from that of
Edward III. this form has been constantly used. ^a It must still, however, be
highly questionable whether the commons, who had so recently taken their place
in parliament, gave anything more than a constructive assent to the laws
enacted during this reign.  They are not even named in the preamble of any
statute till the last year of Edward I.  Upon more than one occasion the
sheriffs were directed to return the same members who had sat in the last
parliament, unless prevented by death or infirmity. ^b

[Footnote a: Prynne's 2d Register.  It may be remarked that writs of summons
to great councils never ran ad faciendum, but ad tractandum, consulendum et
consentiendum; from which some would infer that faciendum had the sense of
enacting; since statutes could not be passed in such assemblies.  Id. p. 92.]

[Footnote b: 28 E. I., in Prynne's 4th Register, p. 12; 9 E. II. (a great
council), p. 48.]

     It has been a very prevailing opinion that parliament was not divided
into two houses at the first admission of the commons.  If by this is only
meant that the commons did not occupy a separate chamber till some time in the
reign of Edward III., the proposition, true or false, will be of little
importance.  They may have sat at the bottom of Westminster Hall, while the
lords occupied the upper end.  But that they were ever intermingled in voting
appears inconsistent with likelihood and authority.  The usual object of
calling a parliament was to impose taxes; and these for many years after the
introduction of the commons were laid in different proportions upon the three
estates of the realm.  Thus in the 23 E. I. the earls, barons, and knights
gave the king an eleventh, the clergy a tenth; while he obtained a seventh
from the citizens and burgesses; in the twenty-fourth of the same king the
two former of these orders gave a twelfth, the last an eighth; in the
thirty-third year a thirtieth was the grant of the barons and knights and of
the clergy, a twentieth of the cities and towns; in the first of Edward II.
the counties paid a twentieth, the towns a fifteenth; in the sixth of Edward
III. the rates were a fifteenth and a tenth. ^c These distinct grants imply
distinct grantors; for it is not to be imagined that the commons intermeddled
in those affecting the lords, or the lords in those of the commons.  In fact,
however, there is abundant proof of their separate existence long before the
seventeenth of Edward III., which is the epoch assigned by Carte, ^d or even
the sixth of that king, which has been chosen by some other writers.  Thus the
commons sat at Acton Burnell in the eleventh of Edward I., while the upper
house was at Shrewsbury.  In the eighth of Edward II. "the commons of England
complain to the king and his council, &c." ^e These must surely have been the
commons assembled in parliament, for who else could thus have entitled
themselves?  In the nineteenth of the same king we find several petitions,
evidently proceeding from the body of the commons in parliament, and
complaining of public grievances. ^f The roll of 1 E. III., though mutilated,
is conclusive to show that separate petitions were then presented by the
commons, according to the regular usage of subsequent times. ^g And indeed the
preamble of 1 E. III., stat. 2, is apparently capable of no other inference.

[Footnote c: Brady's Hist. of England, vol. ii. p. 40; Parliamentary History,
vol. i. p. 206; Rot. Parl. t. ii. p. 66.]

[Footnote d: Carte, vol. ii. p. 451; Parliamentary History, vol. i. p. 234.]

[Footnote e: Rot. Parl. vol. i. p. 289.]

[Footnote f: Id. p. 430.]

[Footnote g: Id. vol. ii. p. 7.]

     As the knights of shires correspond to the lower nobility of other feudal
countries, we have less cause to be surprised that they belonged originally to
the same branch of parliament as the barons, than at their subsequent
intermixture with men so inferior in station as the citizens and burgesses.
It is by no means easy to define the point of time when this distribution was
settled; but I think it may be inferred from the rolls of parliament that the
houses were divided as they are at present in the eighth, ninth, and
nineteenth years of Edward II. ^h This appears, however, beyond doubt in the
first of Edward III. ^i Yet in the sixth of the same prince, though the
knights and burgesses are expressly mentioned to have consulted together, the
former taxed themselves in a smaller rate of subsidy than the latter. ^j

[Footnote h: Id. pp. 289, 351, 430.]

[Footnote i: Id. p. 5.]

[Footnote j: Id. p. 86.]

     The proper business of the House of Commons was to petition for redress
of grievances, as much as to provide for the necessities of the crown.  In the
prudent fiction of English law no wrong is supposed to proceed from the source
of right.  The throne is fixed upon a pinnacle, from which perpetual beams of
truth and justice irradiate, though corruption and partiality may occupy the
middle region and cast their chill shade upon all below.  In his high court of
parliament a king of England was to learn where injustice had been unpunished
and where right had been delayed.  The common courts of law, if they were
sufficiently honest, were not sufficiently strong, to redress the subject's
injuries where the officers of the crown or the nobles interfered.  To
parliament he looked as the great remedial court for relief of private as well
as public grievances.  For this cause it was ordained in the fifth of Edward
II. that the king should hold a parliament once, or, if necessary, twice every
year; "that the pleas which have been thus delayed, and those where the
justices have differed, may be brought to a close." ^k And a short act of 4
Edward III., which was not very strictly regarded, provides that a parliament
shall be held "every year, or oftener, if need be." ^l By what persons, and
under what limitations, this jurisdiction in parliament was exercised will
come under our future consideration.

[Footnote k: Rot. Parl. vol. i. p. 285.]

[Footnote l: 4 E. III. c. 14.  Annual sessions of parliament seem fully to
satisfy the words, and still more the spirit, of this act, and of 36 E. III.
c. 10; which, however, are repealed by implication from the provisions of 6
Will. III. c. 2.  But it was very rare under the Plantagenet dynasty for a
parliament to continue more than a year.

     It has been observed that this provision "had probably in view the
administration of justice by the king's court in parliament." Report of L. C.
p. 301.  And in another place: - "It is clear that the word parliament in the
reign of Edward I. was not used only to describe a legislative assembly, but
was the common appellation of the ordinary assembly of the king's great court
or council; and that the legislative assembly of the realm, composed
generally, in and after the 23d of Edward I., of lords spiritual and temporal,
and representatives of the commons, was usually convened to meet the king's
council in one of these parliaments." p. 171.

     Certainly the commons could not desire to have an annual parliament in
order to make new statutes, much less to grant subsidies.  It was, however,
important to present their petitions, and to set forth their grievances to
this high court.  We may easily reconcile the anxiety so often expressed by
the commons to have frequent sessions of parliament, with the individual
reluctance of members to attend.  A few active men procured these petitions,
which the majority could not with decency oppose, since the public benefit was
generally admitted.  But when the writs came down, every pretext was commonly
made use of to avoid a troublesome and ill-remunerated journey to Westminster.
For the subject of annual parliaments see a valuable article by Allen in the
28th volume of the Edinburgh Review.]

     The efficacy of a king's personal character in so imperfect a state of
government was never more strongly exemplified than in the first two Edwards.
The father, a little before his death, had humbled his boldest opponents among
the nobility; and as for the commons, so far from claiming a right of
remonstrating, we have seen cause to doubt whether they were accounted
effectual members of the legislature for any purpose but taxation.  But in the
very second year of the son's reign they granted the twenty-fifth penny of
their goods, "upon this condition, that the king should take advice and grant
redress upon certain articles wherein they are aggrieved." These were answered
at the ensuing parliament, and are entered with the king's respective promises
of redress upon the roll.  It will be worth while to extract part of this
record, that we may see what were the complaints of the commons of England,
and their notions of right, in 1309. I have chosen on this as on other
occasions to translate very literally, at the expense of some stiffness, and
perhaps obscurity, in language.

     "The good people of the kingdom who are come hither to parliament pray
our lord the king that he will, if it please him, have regard to his poor
subjects, who are much aggrieved by reason that they are not governed as they
should be, especially as to the articles of the Great Charter; and for this,
if it please him, they pray remedy.  Besides which, they pray their lord the
king to hear what has long aggrieved his people, and still does so from day to
day, on the part of those who call themselves his officers, and to amend it,
if he pleases." The articles, eleven in number, are to the following purport:
- 1. That the king's purveyors seize great quantities of victuals without
payment; 2. That new customs are set on wine, cloth, and other imports; 3.
That the current coin is not so good as formerly; ^m 4, 5. That the steward
and marshal enlarge their jurisdiction beyond measure, to the oppression of
the people; 6. That the commons find none to receive petitions addressed to
the council; 7. That the collectors of the king's dues (pernours des prises)
in towns and at fairs take more than is lawful; 8. That men are delayed in
their civil suits by writs of protection; 9. That felons escape punishment by
procuring charters of pardon; 10. That the constables of the king's castles
take cognizance of common pleas; 11.  That the king's escheators oust men of
lands held by good title, under pretence of an inquest of office. ^n

[Footnote m: This article is so expressed as to make it appear that the
grievance was the high price of commodities.  But as this was the natural
effect of a degraded currency, and the whole tenor of these articles relates
to abuses of government, I think it must have meant what I have said in the
text.]

[Footnote n: Prynne's 2d Register, p. 68.]

     These articles display in a short compass the nature of those grievances
which existed under almost all the princes of the Plantagenet dynasty, and are
spread over the rolls of parliament for more than a century after this time.
Edward gave the amplest assurances of putting an end to them all, except in
one instance, the augmented customs on imports, to which he answered, rather
evasively, that he would take them off till he should perceive whether himself
and his people derived advantage from so doing, and act thereupon as he should
be advised.  Accordingly, the next year, he issued writs to collect these new
customs again.  But the Lords Ordainers superseded the writs, having entirely
abrogated all illegal impositions. ^o It does not appear, however, that,
regard had to the times, there was anything very tyrannical in Edward's
government.  He set tallages sometimes, like his father, on his demesne towns,
without assent of parliament. ^p In the nineteenth year of his reign the
commons show that, "whereas we and our ancestors have given many tallages to
the king's ancestors to obtain the charter of the forest, which charter we
have had confirmed by the present king, paying him largely on our part; yet
the king's officers of the forest seize on lands, and destroy ditches, and
oppress the people, for which they pray remedy, for the sake of God and his
father's soul." They complain at the same time of arbitrary imprisonment,
against the law of the land. ^q To both these petitions the king returned a
promise of redress; and they complete the catalogue of customary grievances in
this period of our constitution.

[Footnote o: Prynne's 2d Register, p. 75.]

[Footnote p: Madox, Firma Burgi, p. 6; Rot. Parl. vol. i. p. 449.]

[Footnote q: Ibid. p. 430.]

     During the reign of Edward II. the rolls of parliament are imperfect, and
we have not much assistance from other sources.  The assent of the commons,
which frequently is not specified in the statutes of this age, ^r appears in a
remarkable and revolutionary proceeding, the appointment of the Lords
Ordainers in 1312. ^s In this case it indicates that the aristocratic party
then combined against the crown were desirous of conciliating popularity.  A
historian relates that some of the commons were consulted upon the ordinances
to be made for the reformation of government. ^t

[Footnote r: It is, however, distinctly specified in stat. 7 Edw. I. and in 12
Edw. II., and equivalent words are found in other statutes.  Though often
wanting the testimony to the constitution of parliament is sufficient and
conclusive.]

[Footnote s: Rot. Parl. vol. i. p. 281.]

[Footnote t: Walsingham, p. 97.  The Lords' committee "have found no evidence
of any writ issued for election of knights, citizens, and burgesses to attend
the same meetings; from the subsequent document it seems probable that none
were issued, and that the parliament which assembled at Westminster consisted
only of prelates, earls, and barons." p. 259.  We have no record of this
parliament; but in that of 5 Edw. II. it is recited - Come le seizieme jour de
Marz l'an de notre regne tierce, a l'honeur de Dieu et pour le bien de nous et
de nostre roiaume, eussions grante de notre franche volonte, par nos lettres
ouvertes aux prelatz, countes, et barons, et communes de dit roiaume, qu'ils
puissent eslire certain persones des prelatz, comtes, et barons, &c.  Rot.
Parl. i. 281. The inference therefore of the committee seems erroneous.  [Note
XXIII.]]

     During the long and prosperous reign of Edward III. the efforts of
parliament in behalf of their country were rewarded with success in
establishing upon a firm footing three essential principles of our government
- the illegality of raising money without consent; the necessity that the two
houses should concur for any alterations in the law; and, lastly, the right of
the commons to inquire into public abuses, and to impeach public counsellors.
By exhibiting proofs of each of these from parliamentary records I shall be
able to substantiate the progressive improvement of our free constitution,
which was principally consolidated during the reigns of Edward III. and his
next two successors.  Brady, indeed, Carte, and the authors of the
Parliamentary History, have trod already over this ground; but none of the
three can be considered as familiar to the generality of readers, and I may at
least take credit for a sincerer love of liberty than any of their writings
display.

     In the sixth year of Edward III. a parliament was called to provide for
the emergency of an Irish rebellion, wherein, "because the king could not send
troops and money to Ireland without the aid of his people, the prelates,
earls, barons, and other great men, and the knights of shires, and all the
commons, of their free will, for the said purpose, and also in order that the
king might live of his own, and not vex his people by excessive prizes, nor in
other manner, grant to him the fifteenth penny, to levy of the commons, ^u and
the tenth from the cities, towns, and royal demesnes.  And the king, at the
request of the same, in ease of his people, grants that the commissions lately
made to certain persons assigned to set tallages on cities, towns, and
demesnes throughout England shall be immediately repealed; and that in time to
come he will not set much tallage, except as it has been done in the time of
his ancestors, and as he may reasonably do." ^v

[Footnote u: "La commonaltee" seems in this place to mean the tenants of land,
or commons of the counties, in contradistinction to citizens and burgesses.]

[Footnote v: Rot. Parl. vol. ii. p. 66.  The Lords' committee observe on this
passage in the roll of parliament, that "the king's right to tallage his
cities, boroughs, and demesnes seems not to have been questioned by the
parliament, though the commissions for setting the tallage were objected to."
p. 305.  But how can we believe that after the representatives of these cities
and boroughs had sat, at least at times, for two reigns, and after the
explicit renunciation of all right of tallage by Edward I. (for it was never
pretended that the king could lay a tallage on any towns which did not hold of
himself), there could have been a parliament which "did not question" the
legality of a tallage set without their consent?  The silence of the rolls of
parliament would furnish but a poor argument.  But in fact their language is
expressive enough.  The several ranks of lords and commons grant the fifteenth
penny from the commonalty, and the tenth from the cities, boroughs, and
demesnes of the king, "that our lord the king may live of his own, and pay for
his expenses, and not aggrieve his people by excessive (outraiouses) prizes,
or otherwise." And upon this the king revokes the commission in the words of
the text.  Can anything be clearer than that the parliament, though in a much
gentler tone than they came afterwards to assume, intimate the illegality of
the late tallage?  As to any other objection to the commissions, which the
committee suppose to have been taken, nothing appears on the roll.]

     These concluding words are of dangerous implication; and certainly it was
not the intention of Edward, inferior to none of his predecessors in the love
of power, to divest himself of that eminent prerogative, which, however
illegally since the Confirmation Chartarum, had been exercised by them all.
But the parliament took no notice of this reservation, and continued with
unshaken perseverance to insist on this incontestable and fundamental right,
which he was prone enough to violate.

     In the thirteenth year of this reign the lords gave their answer to
commissioners sent to open the parliament, and to treat with them on the
king's part, in a sealed roll.  This contained a grant of the tenth sheaf,
fleece, and lamb.  But before they gave it they took care to have letters
patent showed them, by which the commissioners had power "to grant some graces
to the great and small of the kingdom." "And the said lords," the roll
proceeds to say, "will that the imposition (maletoste) which now again has
been levied upon wool be entirely abolished, that the old customary duty be
kept, and that they may have it by charter, and by enrollment in parliament,
that such custom be never more levied, and that this grant now made to the
king, or any other made in time past, shall not turn hereafter to their
charge, nor be drawn into precedent." The commons, who gave their answer in a
separate roll, declared that they could grant no subsidy without consulting
their constituents; and therefore begged that another parliament might be
summoned, and in the meantime they would endeavor, by using persuasion with
the people of their respective counties, to procure the grant of a reasonable
aid in the next parliament. ^w They demanded also that the imposition on wool
and lead should be taken as it used to be in former times, "inasmuch as it is
enhanced without assent of the commons, or of the lords, as we understand; and
if it be otherwise demanded, that any one of the commons may refuse it (le
puisse arester), without being troubled on that account (saunz estre
chalange)." ^x

[Footnote w: Rot. Parl. vol. ii. p. 104.]

[Footnote x: Id.]

     Wool, however, the staple export of that age, was too easy and tempting a
prey to be relinquished by a prince engaged in an impoverishing war.  Seven
years afterwards, in 20 E. III., we find the commons praying that the great
subsidy of forty shillings upon the sack of wool be taken off; and the old
custom paid as heretofore was assented to and granted. The government spoke
this time in a more authoritative tone.  "As to this point," the answer runs,
"the prelates and others, seeing in what need the king stood of an aid before
his passage beyond sea, to recover his rights and defend his kingdom of
England, consented, with the concurrence of the merchants, that he should have
in aid of his said war, and in defence of his said kingdom, forty shillings of
subsidy for each sack of wool that should be exported beyond sea for two years
to come.  And upon this grant divers merchants have made many advances to our
lord the king in aid of his war; for which cause this subsidy cannot be
repealed without assent of the king and his lords." ^y

[Footnote y: Rot. Parl. p. 161.]

     It is probable that Edward's counsellors wished to establish a
distinction, long afterwards revived by those of James I., between customs
levied on merchandise at the ports and internal taxes.  The statute entitled
Confirmation Chartarum had manifestly taken away the prerogative of imposing
the latter, which, indeed, had never extended beyond the tenants of the royal
demesne.  But its language was not quite so explicit as to the former,
although no reasonable doubt could be entertained that the intention of the
legislature was to abrogate every species of imposition unauthorized by
parliament.  The thirtieth section of Magna Charta had provided that foreign
merchants should be free from all tributes, except the ancient customs; and it
was strange to suppose that natives were excluded from the benefit of that
enactment.  Yet, owing to the ambiguous and elliptical style so frequent in
our older laws, this was open to dispute, and could, perhaps, only be
explained by usage.  Edward I., in despite of both these statutes, had set a
duty of three pence in the pound upon goods imported by merchant strangers.
This imposition was noticed as a grievance in the third year of his successor,
and repealed by the Lords Ordainers.  It was revived, however, by Edward III.,
and continued to be levied ever afterwards. ^z

[Footnote z: Case of impositions in Howell's State Trials, vol. ii. pp.
371-519; particularly the argument of Mr. Hakewill.  Hale's Treatise on the
customs, in Hargrave's Tracts, vol. i.

     Edward III. imposed another duty on cloth exported, on the pretence that,
as the wool must have paid a tax, he had a right to place the wrought and
unwrought article on an equality.  The commons remonstrated against this; but
it was not repealed.  This took place about 22 E. III.  Hale's Treatise, p.
175.]

     Edward was led by the necessities of his unjust and expensive war into
another arbitrary encroachment, of which we find as many complaints as of his
pecuniary extortions.  The commons pray, in the same parliament of 20 E. III.,
that commissions should not issue for the future out of chancery to charge the
people with providing men-at-arms, hobelers (or light cavalry), archers,
victuals, or in any other manner, without consent of parliament.  It is
replied to this petition, that "it is notorious how in many parliaments the
lords and commons had promised to aid the king in his quarrel with their
bodies and goods as far as was in their power; wherefore the said lords,
seeing the necessity in which the king stood of having aid of men-at-arms,
hobelers, and archers, before his passage to recover his rights beyond sea,
and to defend his realm of England, ordained that such as had five pounds a
year, or more, in land on this side of Trent should furnish men-at-arms,
hobelers, and archers, according to the proportion of the land they held, to
attend the king at his cost; and some who would neither go themselves nor find
others in their stead were willing to give the king wherewithal he might
provide himself with some in their place. And thus the thing has been done,
and no otherwise.  And the king wills that henceforth what has been thus done
in this necessity be not drawn into consequence or example." ^a

[Footnote a: Rot. Parl. p. 160.]