History of the English Parliament, together with an account of the Parliaments of Scotland and Ireland

Front matter

HISTORY OF THE ENGLISH PARLIAMENT VOLUME I. TRANSLATION. William, King, greets William, Bishop, and Geoffrey Portreeve, and all the Burghers of London, French and English, friendly. And I make known unto you that I will that ye be worthy all those laws, the which ye were in King Edward's day, and I will that each child be his father's heir after his father's day and I will not suffer that any man do you any wrong, God give you health. CHARTER TO LONDON, GRANTED BY WILLIAM THE CONQUEROR. HISTORY OF THE ENGLISH PARLIAMENT TOGETHER WITH AN account OF THE of Skollantr anb Ireland BY G. BARNETT smith VOLUME I FROM THE EARLIEST TIMES TO THE DEATH OF CHARLES Is. WARD, LOCK, BOWDEN & CO. LONDON: WARWICK HOUSE, SALISBURY SQUARE, E.C. NEW TORI- : BOND STREET MELBOURNE : ST. JAMES'S STREET. SYDNEY : YORK STREET 1892 [All rights reserved]

Preface

. IHE origin, progress, and character of our political institutions have been laboriously described by various modern historians. Dealing with different periods, some of these historians have occupied them selves with the inception, some with the development, and others with the later expansion, of the English Constitution. In the pages of these writers we are enabled to gain a clear and accurate idea of the changes through which the Constitution has passed, and the means by which its successive stages have been evolved. It is therefore no longer a reproach against England that constitutional research is neglected by her historical students. Chief among contemporary historians for his con stitutional lore and erudition is the Bishop of Oxford (Dr. Stubbs). His learned volumes are indispensable to a clear understanding of the early stages of the Constitution.

Scarcely second to him in conscientious research was the late Mr. Freeman, whose work on the Norman Conquest is an imperishable monument to that great scholar. A worthy rival to these for critical insight and well-balanced judgment was Mr. Hallam,

PREFACE.

. VI who detailed constitutional progress in England from the accession of Henry VII. to the death of George II. Dr. S. R. Gardiner may justifiably be regarded as the most authoritative historian of the seventeenth century; and the late Lord Farnborough produced a useful narrative of constitutional progress in that momentous century 1760—1860. For its breadth of survey and general grasp of principles, Dr. Rudolf Gneiss's History of the English Constitution has never been surpassed ; and the same writer's Student's History of the English Parliament is an admirable treatise, though necessarily limited in scope and deficient in detail. For its excellent statement of the theory, methods, and machinery of government, Mr. Alpheus Todd's Parliamentary Government in England stands alone ; yet Sir W. R. Anson's Law and Custom of the Constitution is well deserving of mention in this connection.

Among other kindred works, Mr. Taswell- Langmead's English Constitutional History is a valuable text-book for students. These are the more recent works of a leading character on the English Consti tution; but space would fail me if I attempted to enumerate all the constitutional histories and treatises of value produced during the present century, to say nothing of those treasures of antiquarian and historical research associated with preceding centuries. The present History, which represents the labour of many years, is not constructed upon the lines of any

PREFACE.

. VI of the works just indicated, nor does it enter into comparison with them. It rather claims to be the first full and consecutive history of Parliament as a legislative institution from the earliest times to the present day. I would that I could emulate the ability of the writers I have named ; but at any rate I can plead my intense absorption in a great and fascinating subject, and if I can interest the thousands of readers who are attracted by the mighty story of England's Parliament, I shall be abundantly satisfied. To that portion of our Parliamentary history which is less widely known to readers generally — that is, the portion concerned with the earlier stages of our representative institutions — I have naturally devoted the larger share of attention. All the facts and statements in this work are based on unquestioned authority ; that is, the authority of the Parliamentary records, and the writings of historians who have made the various periods dealt with the object of their special research.

I desire here to make comprehensive acknowledgment of my indebtedness. It would have given me great pleasure to cite in the footnotes every authority consulted for each statement as it appears ; but I soon found that to do this would exhaust half the space I had at command, large as the work is. If, therefore, in this matter I have sometimes left undone what I ought to have done, I trust I shall be pardoned. Although the sources of PREFACF. vm original information have been so vast and so numerous, I will only add that I have not consciously incorporated anything into this work that will not bear the test of historical scrutiny. I now leave this narrative, which I have striven to produce in the true historical spirit and without political bias, in the hands of the reader. Whatever his political views may be, there is much in the stirring record of the British Parliament to make him proud of the ancestors from whose loins he has sprung. G. B. S. Bournemouth, Sept. 5th, 1892. CONTENTS OF VOL. I.

Chapter I. Anglo-saxon Institutions

The people of England regard with just pride the venerable system of Parliamentary Government under which it is their happiness to live. Not only is that system the best calculated for the preservation of liberty; but, as the embodiment of the State in miniature, it is truly representative of the vast and multifarious interests of the nation. The beginnings of our Parliamentary in stitutions stretch far away into distant ages, long before the Norman William landed upon our shores ; and it is impossible now to trace the first foreshadowings of that Constitutional influence which Englishmen of to-day possess in the great Legislative Assembly of the realm. Although the earliest Parliament which can truly be called historical assembled at Westminster on November 27th, 1295, the first mention of the word Parliament in relation to a national assembly is found' under the year 1246, while the earliest use of the term in the statutes of England occurs in the preamble to the First Statute of Westminster, 1275.

But long before this period our Saxon forefathers had assembled for the enactment and alteration of laws, or for the administra tion of justice. Their legislative gatherings were of Germanic origin, the various Teutonic races which conquered Britain bringing with them their own laws

BOOK 4 HISTORY OF THE ENGLISH PARLIAMENT.

Chap. I Anglo- Saxon In stitutions Bases of the Consti tution. and representative societies. Consultative bodies met to devise measures for the public good ; but no record has been handed down to posterity of the eloquence of the Chathams, Pitts, and Burkes who swayed the councils of these earlier times. There can be no society without some form of government, and even the ancient Britons had their municipal and political laws. They possessed their commune con cilium, or Parliament, which framed laws for the people.1 According to Julius Cæsar, Cassivelaunus was elected by a commune concilium of the States ; and Tacitus and Dion Cassius bear testimony to the existence of British laws and institutions. When Lucius, one of the kings of Britain in the second century, sent to Elutherins, the Pope, for the code of Roman laws, the latter, not ignorant of the British institutions, replied : " Thou hast almost every page of them in thy kingdom ; from them by the grace of God, by the council of thy kingdom, take the law, and by that power of God rule thy kingdom of Britain."2 The Britons would certainly seem to have enjoyed liberty, to have been their own legislators, and to have had power to remove for cause their executive.

It is, however, quite clear that the principles of our existing political constitution were derived neither from Celtic nor Roman sources, but were of Teutonic origin, as we shall presently see. Still, as one of our ablest historians has pointed out — touching the ancient British institutions, and their subversion by the Saxons — whde the student of history " will not find the relations of King, Lords, and Commons accurately balanced in the first Teutonic settlement on the shores of Kent, he may discover the rudiments of all three in days which were ancient in the times of Hengest." However remotely history and tradition convey us back, there will be discovered the germs alike of the monarchic, the aristocratic, and the democratic branches of our constitution. " Our Parlia- Sir Henry Spelman's History of English Councils.

Bede's Ecclesiastical History. ANGLO-SAXON INSTITUTIONS. I. Chap. I. Anglo- Saxon In stitutions. Continuity National Assemblies. ment," to cite the same authority, " is the true and lawful representatively true and lawful succession, of the ancient Meeting of the Wise ; but if we would search out the origin and constitution of the Meeting of the Wise, we must go not to the Parliamentary traditions of the last six hundred years, but to the Marzfeld of the Frankish kings, to the Landesgemeinden of Uri and Unterwalden, to those yet earlier assemblies which still rise before us in full life in the pages of Tacitus, 'the first inquirer into the habits and institutions of our race.' " ' It is most interesting to note that the continuity of our National Assemblies has never been broken. There has never been a period when we have been completely deprived of a National Assembly; and this distinguishes the history of England from that of every other Euro pean kingdom.

The Witenagemot changed into the Great Council, and the Great Council into the Parliament, as a distinct result of the Norman Conquest. The word Par liament, which has its Latin equivalent in colloquium, came to us from Italy, but through the French, being derived from parler : it means a talking or conferring together. Parlamento is a meeting of the Florentine people on the piazza of the Signory ; but the term Parliament as signifying a general assembly of states was first used under Louis VII. in France, about the middle of the twelfth century. Blackstone affirms that general councils in England are coeval with the kingdom itself, but they were originally composed only of the powerful and privileged classes, and centuries elapsed ere they assumed a popular and comprehensive character. It is not a little curious that the Norman peasantry which revolted in the tenth century established a regular representative Parliament, which was a remarkably faithful prototype of the English one.

Two peasants were returned from each district to a general assembly, whose decisions were to be binding upon the whole body. 1 History of the Norman Conquest of England, its Causes and its Results, by E. A. Freeman. [book 6 HISTORY OF THE ENGLISH PARLIAMENT. Here is the actual root idea of what constitutes a true Parliament.1 Chap. I. Anglo- Saxon In stitutions. One origin of all Aryan legislatures is to be found in the Village Council, which was the first effort to create a legislative body. " From this embryo have sprung all the most famous legislatures of the world — the Athenian Ekklesia, the Roman comitia, senate, and prince, and our own Parliament — the type and parent of all the collegiate sovereignties of the modern world, or, in other words, of all governments in which sovereign power is exercised by the people, or shared between the people and the king." 2 The Village Council.

Britain under the Romans. When Britain was finally subjugated by the Romans, the Roman laws were established in every part of the conquered country, and Britain became a diocese in the præfecture of Gaul. It was divided into provinces, under the direction of a president or consular. The Curia, or ruling body, was composed of senators or decurions, but a species of controlling power existed in the provincial councils and assemblies. Deputies and magistrates from the cities attended them, as well as great landed proprie tors ; and the Councds assembled at stated times of the year. " Whether these councds were engrafted or not upon institutions subsisting among the conquered nations, they became one of the elements out of which were formed the legislative assemblies of modern Europe."3 Saxon After the connection with Rome was severed, the Britons were divided into rival communities.

Then came the Teutonic occupation of the country, when the Jutes, Angles, and Saxons obtained a permanent foothold. The Saxon settlement was a migration, not a mere conquest, and the Teutons brought with them the elements of civilisation. It was in the village moots of Friesland or Sleswick that our forerunners taught England to be a "mother of Parliaments." Ancient Germany, the Councils. Him: hVoiiKm's l.'r.orlh of the English Constitution. ' Sir 11,,,,,-y Sumnor Maine's Early History of Institutions. ' Sir Francis Palgrave's History of England: Anglo-Saxon Period and Rim and Progntt of the English Commonwealth. «■] 7 ANGLO-SAXON INSTITUTIONS. Chap. I Anglo- Saxon In stitutions. Townships and Moots. primeval abode of the Jutes, Angles, and Saxons, con sisted of many free and independent States.

These again were divided into provinces, each of which formed a separate civil community, but one subordinate to the supreme legislative assembly of the State. At the Great Councils, every freeman of a proper age, who had not forfeited his title by any misdemeanour, was bound to be present to declare his assent or dislike to the measures there concerted. The chieftains, the ealdormen, were the priests, law-givers, and leaders of the tribe, but possessed only a temporary political power. The title of king was, strictly speaking, unknown, but the Saxon conquerors assumed the authority of kings. Some authorities state that about the year 477 a.d., Ella first assumed the dignity of Bretwalda, ruler of the Britons, a title of supremacy as much superior to that of an ordinary king as the latter was to the national dignity of ealdorman.1 But still more recent historians reject this definition : while they accept the title as significant of a substantial hegemony, they controvert the doctrine of Roman influence and continuity, holding the Bret waldadom to be of purely English growth.

The national organisation under the Anglo-Saxons, from the seventh to the eleventh century, can be succinctly de scribed. The land was appropriated to separate townships.2 Each township had an organisation of its own, but for certain purposes the inhabitants were united by the mutual responsibility of the kindred. For some purposes they were under the authority of the reeve, who with four elected companions represented the township in the court of the hundred or in the folkmoot. The township was not always independent, being sometimes the property of a nobleman, a follower of the king — bearing variously the 1 Parry's Parliaments and Councils of England, and Palgrave's History. 1 The township was equivalent to the vicus of Taeitus ; it was the community. Joined with others the vicus became the 2'agus and an aggregation of pagi was a civitas or populus.

H Chap, i Anglo- Saxon In stitutions. Tlie Shire moot. [book HISTORY OF THE ENGLISH PARLIAMENT. style or title of comes, gesith, or thegn. All these were noble companions of the king, and a thegn occupied about the same position before the Conquest as a knight did subsequently. But the organisation of the township remained the same, whether it was absolutely free or under jurisdiction. A cluster of townships formed the hundred or wapentake. The presiding officer was the hundred-man, sometimes elected, sometimes nominated, who called the hundred-moot together, and led it to the shiremoot, etc. He was assisted by a body of freemen twelve, or a multiple of twelve— who declared the report of the hundred, and were capable of enforcing the law. Nearly all the work of judicature was contained in this.

The shiremoot was a ready court of appeal, the royal audience being accessible only when hundred-moot and folkmoot had failed to do justice. A cluster of hundreds made the shire, with the ealdorman, sheriff, and bishop as officers. Its councfilors were the thegns, who declared the report of the shire ; its judges were the folk assembled in the shiremoot, the people, the lords of land with their stewards, and the reeve and four men, with the parish priest, from the townships. To define in brief the Anglo-Saxon or early English constitution, it was of the ordinary type of " that common polity or germ of polity which we find in all the rude nations that have attained civilisation — a consultative and tentative absolutism." ' There was a king — the chosen representative of the race, their leader in war and their judge in the last resort — an assembly of the wise, and the concourse of the people.2 The shiremoot, or county court, which was the real folkmoot, was the most complete organisation under the Anglo-Saxon system.

It was not the Witenagemot of the shire, but the real assembly of the people. All freemen appeared in it, either in person, or by representation. Its ealdorman was appointed by the Witan of the whole 1 The English Constitution, by Walter Bagehot. 2 Sir W. R. Anson's Law and Custom of the Constitution : Part I. Parliament. I. ANGLO-SAXON INSTITUTIONS. Chap. I, Anglo- Saxon In stitutions. The Witena gemot. nation, like the princeps of Tacitus ; its reeve was elected from below, and authorised from above, like the king or bishop. The ealdorman led the whole shire to the host ; the sheriff commanded the freemen, the lords their comites and vassals, the bishop's reeve or abbot's reeve the tenants of the churches ; but all were under the ealdorman as the national leader. The ealdorman and bishop attended the Witenagemot; and the sheriff executed justice and secured the rights of the king or nation in the shire.

The county court passed through many changes, and the king acquired a close connection with it through his shire-reeve, the ealdorman and bishop being gradually supplanted. Under the Norman kings the court was called monthly, instead of twice a year like the old folkmoot ; but at the same time the older and fuller form of the court was still called twice a year, chiefly for Crown purposes. Indeed, after the Conquest the shiremoot gained more in connection with the central power than it lost in independent action. It was interwoven with civil and criminal procedure, and had numerous other duties, connected with the election of coroners, the assessment and collection of carncage — a tax originally levied at so much per plough — the exaction of oaths of allegiance, and, most important of all, the election (after 1254) of knights and burgesses to Parliament.1 The union of shires formed the kingdom, and the national council was the Witenagemot, or the Assembly of the Wise Men.

Each Anglo-Saxon kingdom, in the time of what is styled the Heptarchy, had its witenagemot, and it was not until Wessex had finally annexed the other kingdoms that the nation was counselled for by one Witenagemot. The theory that every freeman had a right to come to the Witenagemot, as he had to the shiremoot, is not substantiated ; though on .certain 1 Further references to the county court will be made at a later stage. It must not be confounded in powers and jurisdiction with the existing county court, which is merely an institution — though a very valuable one— for the transaction of minor judicial business. [book HISTORY OF THE ENGLISH PARLIAMENT. 10 Chap, I, Anglo Saxon In stitutions. important occasions, as at the election of a new sovereign, the mass of the people attended the meetings of the Witan, and shouted agreement with or disapprobation of the proposals made.

But neither in its earlier nor in its later form, neither under seven kingdoms nor one, was the Witenagemot formed on the model of the lower courts. It was not a folkmoot ; and although it represented the people from the fact that it contained the leaders in Church and State, it was not a collection of representatives. Its members were the principes, the sapientes, the comites and counsellors of royalty, the bishops, the ealdormen, and the king's thegns. It was never a large assembly. It contained seventeen bishops, a number of ealdormen variable according to the distribution of the shires, and never probably exceeding twenty, and an inde terminate number of vassal members, gradually increasing as the power of the Crown became greater and the number of jurisdictions multiplied under the leaven of feudalism.

Only the king's greater subjects thus consulted on import ant matters, but in smaller matters the whole nation had a voice. The ordinary people, the folk, rose no higher than the shiremoot, and the whole claims of the nation as against the king were vested in the Witenagemot; so, that, as the character of the king varied, those claims were more or less actively exercised. The Witan, where able, had the right of electing and deposing kings ; in conjunction with the king, of nominating ealdormen and bishops, of regulating the transfer of public lands, of imposing taxes, of voting supplies, and so deciding war aud peace, of authorising the enforcement of ecclesiastical decrees, of joining in the making of laws, of sitting as a high court of justice over all persons and causes. u But under a strong king many of these claims are futile ; the whole public land seems, by the eleventh century, to have been regarded as at the king's disposal really, if not in name ; the sheriffs, ealdormen, and bishops are named by the king ; if he be a pious one, the bishops are chosen by him with respect to the consent of the diocesan clergy; if he be a peremptory one, they are appointed by his deter- '•] 11 ANGLO-SAXON INSTITUTIONS. mined will.

But the powers of legislation and taxation are never lost, nor does the king execute judgment without a court which is in name, and in reality perhaps, a portion of the Witenagemot." ' Chap. I. Anglo- Saxon In stitutions. Professor Freeman and Bishop Stubbs agree as to the powers of the Witan, but differ altogether as to the constitution of the Witenagemot. Freeman — following Kemble, author of The Saxons in England — regards the Witenagemot as an assembly of the whole kingdom, after the type of the smaller assemblies of the shire and other lesser divisions. The Bishop fully admits the popidar character of the smaller assemblieSj but denies any such character to the national gathering ; Freeman (Norman Conquest, vol. i., note Q) quotes a number of passages which seem distinctly to imply that every free man had theoretically a right to attend the Witenagemot.

Some of the expressions used, he remarks, might be applied without impropriety to a representative assembly, but they could not be applied to a body not representative, unless, in theory at least, it took in the whole nation. The passages further seem to prove that some form of demanding the assent of the people at large was always retained.2 Its constitution. To sum up the character of the Anglo-Saxon moots : the folkmoot was a popular assembly of the shire, and a Folkmoots and Wit enagemots. 1 Bishop Stubbs's Introductory Sketch to the Select Charters. 2 Ladies of birth and quality frequently sat in council at the Saxon Witenagemots. In a great council held at Bapchild, a.d. 696, the abbesses sat and deliberated, and five of them signed the decrees of that council with the bishops and nobles.

In Henry III.'s and Edward I.'s time, four abbesses — viz., those of Shaftesbury, Barking, Wilton, and St. Mary of Winchester — were directed to send proctors to Parliament. To a parliament called by Edward III. in 1362 the following abbesses were summoned to send proctors : the Countesses of Norfolk, Ormond, March, Pembroke, Oxford, and Athol ; and the Baronesses Anne Despenser, Johanna Fitz-Walter, and Margaret de Koos. The summoning by proxy was a privilege once peculiar to the peerage. I cannot find that any lady was ever summoned to send proctors to Parliament after the reign of Edward [book 12 HISTORY OF THE ENGLISH PARLIAMENT. Chap. I, Anglo- Saxon In stitutions Powers of the Witenagemot, representative body to a certain extent. The Conned of the whole state was not a folkmoot, but a Witenagemot ; and, although the matter cannot be decided by actual examples, it is not improbable that two central councils— the folkmoot or council of the people, and the Witenagemot or council of the chiefs — were in separate but simultaneous action in each kingdom.

But before the time of Alfred at least, the national assembly, in which the laws were pro mulgated, must have comprised a much wider class than the Witan. On great occasions, as before remarked, the Witenagemot was attended by a concourse of people, whose voices could be raised in assent or resistance to the pro posals of the chiefs ; but the people did not share in the constitutional powers of the Witan, nor were they called together in any representative character, as in the case of the folkmoot. Whenever the populace were present at a Witenagemot, it was almost invariably on important occasions, such as when a Danish invasion was announced, or a king was to be elected, or laws promulgated. To wards the period of the Conquest, in all likelihood great courts were held at Easter, Whitsuntide, and Christmas, when the deliberations of the Witan took place in them ; and at such courts there would be large popular gatherings, which, while destitute of organisation, might be said to represent the nation at large.1 Kemble, whose able work upon the Saxons2 just alluded to is regarded as authoritative, furnishes a list of 147 witenagemots, from the year 698 to 1066.

In the records, the national meetings were styled, like all the Saxon law court assemblies, gemotes ; and the subjects for deliberation included decrees as to war and peace, and resolutions as to the legal system, but especially as to the maintenance of the peace, and police regulations. Tlie ordinary business included the settlement of disputes between powerful thegns and prelates, and popular grievances of all sorts, especially complaints of the 1 Stubbs's Constitutional History. 2 The Saxons in England, by John Mitchell Kemble, 2 vols., 1849. "■] 13 ANGLO-SAXON INSTITUTIONS. Chap. I. Anglo- Saxon In stitutions. Church and the State. denial of justice. The Witenagemot was not so much a court of appeal as a supplementary resource for those who were unable to obtain justice in the county. The enacting character of the assembly was expressly affirmed, and its consent explicitly mentioned in the conclusion of contracts, the summoning of the army, and in ecclesiastical ordinances, but most frequently of all iu the allodification of folkland.

William of Malmesbury defines the Saxon Witenagemot as " a general assembly and ordinance of the senators and people " ; Sir Henry Spelman calls it " an assemblage of the chiefs of the kingdom, bishops as well as magistrates, and the freemen, to consult on the common safety, on peace and war, and to promote the public welfare " ; and Camden observes that " what the Saxons formerly called Witenagemot, we call Parlia ment, and it may justly be styled the commonwealth of all England : it possessed the inviolable authority of making, confirming, repealing, and interpreting the laws, and of all things which regarded the common weal." The development of the Church in its bearing upon the State must now be noted. The mark, or township, became the sphere of duty of a single priest, and later was called his parish ; the kingdom became the diocese of a bishop ; the whole land the province of the metro politan : the rival archbishops headed rival nationalities ; the greater dioceses were subdivided on the lines of the earlier under-kingdoms in six of the seven states, and when Wessex late in the day began to subdivide, she followed the same idea.

The organisms of Church and State advanced side by side ; the shires became the archdeaconries, and the hundreds the deaneries of a later age. The archdeacon or bishop presided with the ealdorman and sheriff in the shiremoot ; the parish priest led his people to the hundred-moot, or even to the fyrd — the military gathering for the defence of the country ; and the Witenagemot had its most distinct and permanent constituent in the clergy, bishops, and abbots. In fact, under the Heptarchic arrangement there was no organised unity but the ecclesiastical. In this aspect the Church BOOK HISTORY OF THE ENGLISH PARLIAMENT. Chap. 1, Anglo- Saxon In stitutions. Legisla tion and luxation. •Govern ment in the tenth ■century. was older than the State. The only national councils were those of the Church, and the metropolitan was the only person whose word had the same force everywhere.

The nation first began to realise its unity through the Church.1 Legislation and taxation were at first confined within narrow limits. The working of the trinodi necessitas, and the rents of the public lands, obviated the necessity for any other expenses of government. The trinoda neces sitas was the threefold obligation of repairing bridges, keeping up fortifications, and performing mditary services, all being incumbent upon every holder of land in Anglo- Saxon times even if he were exempt from every other service. The earliest mention of these obligations occurs in the beginning of the eighth century. Extraordinary taxation was imposed by the Witenagemot, as the Danegeld or the shipgeld ; a regular tax of two shdlings on every hide of land furnished a bribe to the Danes, or a contribution of a ship and its equipments was levied on the shires to enable the king to resist the invaders.