HENRY IV. 1399-1413. It was likewise enacted that a sheriff making a false return, or acting in opposition to Stat. 7 Henry IV. c. 15, was subStat. 11 Hen. IV. jected to a fine of one hundred pounds, and the judges of assize were empowered to inquire into such offences, and to pass sentence on the delinquents". Object of these statutes. Peers assumed the character of one of the estates of the realm, on the deposition of Richard II. These statutes were intended to settle the manner of election of knights for those counties, which then sent members of parliament, and to ascertain the persons who were to elect those knights, because, from the mode of election which had hitherto prevailed, much depended on the partiality of the sheriff, who being appointed by the court, seldom hesitated to make an undue return, when requested by the government, and which had caused frequent remonstrances. Another equally cogent motive was, that, in many preceding parliaments, the commons, by their petitions, had desired a parliamentary declaration, by whom the wages of knights of the shires were to be paid; but to these petitions of the commons, answers were given referring only to usage; and from some of these petitions it appeared, the peers had insisted that, their tenants being represented by them, were exempted from that charge. In the proceedings on the deposition of Richard II., the peers assumed the character of one of the estates of the realm, all the rest of the laity, comprehending the tenants of those peers, being considered as forming another and distinct estate; and this third estate was evidently considered in the proceedings on the deposition of Richard, not as represented in any part, by the temporal lords, who formed the second estate, but as represented in the whole by the representatives of the commons in parliament; and in the description of the parliament, in the exemplifications of the acts of settlement of the crown, in 7 Henry IV., and indeed throughout the whole of the reign of Henry IV., the elected knights, citizens, and burgesses in parliament, were treated as the liament treated representatives of all the commons of the realm, forming the distinct third estate; the temporal lords appearing only on their own behalf as the second estate, of which they were the only members 10. Members of par as the represen tatives of all the commons of the realm. 15 3 Rot. Parl. 601. Stat. 11 Henry IV. c. 1. 3 Lingard, 317, 318. 16 Whitelock has asserted (2 Whitelocke, Parl. Writ, 43,) that the "three estates are king, lords, and commons;" but this position cannot be supported by the ancient records and law books (3 Hallam's Middle Ages, 158). "This land standeth," says the Chancellor Stillington, in 7 Edward IV., Thus gradually the constitution of the legislature became HENRY IV. formed as at present. The representative system by elections 1399-1413. for counties, cities, and boroughs, was gradually introduced, indebted for its origin to the pecuniary necessities of the crown, as it could obtain more from them by such a mode, than by a reasonable tallage; and finally established by usage rather than by positive law. No definitive enactment having been previously made, declaring who should be the persons represented", and who should be the electors of the knights of the shires, till Stat. 7 Henry IV. The two houses of parliament were not accustomed, previous to this period, to consider their respective rights and privileges with that jealousy, which they have subsequently done. In the parliament which assembled at Gloucester in 9 Henry IV., the commons prayed the king that certain lords, whom they named, might be assigned to commune with them of certain matters, for the common profit of the whole kingdom; a request which had been made on previous occasions, and which the king granted; but the commons henceforth availed themselves of every opportunity to claim peculiar privileges, particularly respecting pecuniary grants to the crown. The king had assembled the lords spiritual and temporal in his presence, and they were required to state what aid they conceived necessary for the public service. To this the lords answered, that less would not suffice than a tenth and a half of cities and boroughs, and a fifteenth and a half of other laymen, and a grant of the subsidy of wool, leather, and woolfells, and other duties for two years. "by three states, and above that one principal, that is to wit, lords spiritual, lords temporal, and commons, and over that, state royal, as our sovereign lord the king." (5 Rot. Parl. 622.) Thus, too, it is declared that the treaty of Staples, in 1492, was to be confirmed "per tres status regni Angliæ rite et debite convocatos, videlicit per prelatos et clerum, nobiles, et communitates ejusdem regni." (12 Rymer, 508.) The only authority which can be cited for Whitelocke, is in 2 Henry IV., where the commons say, that the states of the realm may be compared to a trinity, that is, the king, the lords spiritual and temporal, and the commons. (3 Rot. Parl. 459.) This passage only proves that by estates of the realm, was meant members, or necessary parts of the parliament. The error has originated from an inattention to the primary sense of the word "status," which means an order or condition into which men are classed by the institutions of society. It is only in a secondary or rather an elliptical application, that it can be referred to their representatives in parliament or national councils. 17 1 Rep. Dig. Peer. 357. Stat. 7 Hen. IV. fined the electors of members of c. 15, first de parliament. Rights and privi leges of the two houses of parlia ment. The lords advise the amount of the king, as to public aids. HENRY IV. 1399-1413. Commons claim the right to ori By command of the king, a message was sent to the commons, to send to the king and the lords a certain number of their fellows, to hear and report to their fellows what they should have in command from the king. The commons sent twelve of their members, to whom the question put to the lords, and the answer given by the lords, were delivered; which answer the king willed they should report to their fellows. The report being made to the commons, they affirmed the ginate taxation. proceeding to be in prejudice and derogation of their liberties: thus claiming, as the representatives of the people at large, that all grants of aids must proceed first from them, and could not originate with the lords; an assertion inconsistent with the frame of such an assembly, as was required by the Charter of John, and inconsistent with many proceedings in the reign of Henry III., and particularly in the assembly, whose answer to the king produced the parliament of Oxford, in the forty-second of that reign. Declaration of the king, defining the rights of the crown and houses of parliament. Lords to commune amongst themselves in parliament. Commons to commune together. The king, as it is stated on the Roll, hearing of the transaction in the commons, and willing that nothing should be done then, or in future, which might any way turn against the liberty of the estate, for which they were come to the parliament, nor against the liberties of the lords; willed, and granted, and declared, that it should be lawful for the lords to commune amongst themselves in that parliament, and in every other in time to come, in absence of the king, of the state of the realm, and of the remedy necessary for the same; and that in like manner, it should be lawful for the commons, on their part, to commune together of the state and remedy aforesaid :-provided always, that the lords, on their part, and the commons on their part, should not make any report to the king, of any grant, by the commons granted, and by the lords assented to, nor of the communications of the said grant, before the lords and commons should be of one assent and accord in such matters; and then in manner and form as had been acustomed; that is, by the mouth of the speaker of the commons. The king willing, moreover, by assent of the lords, that the communication made in that parliament, as before stated, should not be drawn into example in time to come, nor turn to the prejudice or derogation of the liberty of the estate for which the commons were then come; neither in that par 1399-1413. liament, nor in any other in time to come; but he willed that HENRY IV. himself, and all the other estates, should be as free as they were before 18 This declaration on the part of the crown, seems to have placed the king, and the two houses of parliament, in that separate and independent situation in which they are now respectively situated. Not indeed as a novelty, but as a solemn declaration in parliament of what had been before accustomed, although proceedings of a contrary tendency might have taken place in former parliaments:-and this declaration in parliament, with Stat. 15 Edward II., and the statute passed in this parliament declaring, who should be the electors of the knights of the shires, and the repeated declarations in this and preceding parliaments of Henry IV., that the House of Commons as then constituted, was the representative of the third estate, including all the laity of the kingdom, except the lords temporal, and that the lords temporal by themselves were a distinct estate of the realm, appearing personally in parliament, seem to have completely settled, what was in future to be deemed the true constitution of the legislature of the kingdom, especially with respect to the important point of grants of aid to the king, and with respect to the separate and distinct offices and duties of the two houses of parliament, and their respective separate and independent proceedings, and also the relation which the king was to bear to the two houses of parliament respectively, except only as the privileges claimed by the clergy may have interfered. 3. General Legislative Enactments. The House of Commons recog nized, as the representative of the third estate. c. 10. Several important statutes were passed :-one confined the Stat. 1 Hen. IV. guilt of treason to the offences enumerated in the celebrated act of Edward III.'; another abolished appeals of treason in Stat, 1 Hen. IV. parliament, and sent the accuser to the established courts of c. 14. law; a third declared that the authority of parliament Stat. 1 Hen. IV. should never more be delegated to a committee of lords and commons3; and a fourth forbade, under the heaviest penalties, Stat. 2 Hen. IV. any person besides the king to give liveries to his retainers. 18 3 Rot. Parl. 427. 2 Ibid. c. 14; vide ante 111. 1 Stat. 1 Henry IV. c. 10. 3 3 Lingard, 277, 278. ✦ Stat. 1 Henry IV. c. 7. Stat. 2 Henry IV. c. 21. c. 7. c. 21. HENRY V. 1413-1422. Stat. 1 Hen. V. c. 1. Doctrine of resi ancy supported common law, SECTION II. HENRY V., March 20, A. D. 1413,-August 31, A.D. 1422. 1. Persons to be chosen and choosers 2. Illegal Taxes not levied by the House of Lancaster. 1. Persons to be chosen, and choosers of Knights and Burgesses to serve in Parliament. In the short, but triumphant government of Henry V., the spirit of faction was awed, and the spirit of liberty had no occasion of exerting itself; at least with struggle, or in any signal manner, under a prince, just, moderate, and pious, according to the religion of those times'. This reign was productive of an important statute, as to the classes of people who should be chosen, and should be choosers of the knights and burgesses to serve in parliament, by which the knights of the shires were not to be chosen, unless resident within their shires, and the knights, esquires, and others, choosers of such knights of the shires, were also to be resident within their shires. The "citizens" and "burgesses," of the cities and boroughs were to be chosen from men, citizens and burgesses resiant, dwelling, and free, in the same cities and boroughs, and none other in any wise3. The general doctrine of "residence" is thus applied to the by the Saxon and persons who were to vote in the shires, as the "inhabitants of the county:" and likewise to the boroughs, the burgesses of which were resident, and in that character would be suitors of the court leet-they were to be "dwelling," and so would be "householders," and would pay scot and lot: they were also to be of "free" condition, and therefore would be sworn and enrolled at the court leet; and would be free and lawful men of the place, where they were enrolled and dwelt; and as that was a borough, they would be burgesses: and this construction of the statute is supported by the Saxon laws,—the common law, and all the legal and municipal records up to this period. Bolingbroke, Hist. Eng. 68. 2 Stat. 1 Henry V. c. 1.' 3 This statute is an isolated instance, wherein the House of Commons and the court of King's Bench, usurped the power of declaring it unfit to be observed, when it was unrepealed by any enactment, upon the principle of desuetude, a doctrine which cannot be too severely reprobated (vide 1 Peck, note D 53. Stat. 14 Geo. III, c. 58). |