1377-1399. RICHARD II. ancient history of England is nothing but a catalogue of reversals; everything is in fluctuation and movement; one faction was continually undoing what was established by another; and the multiplied oaths, which each party exacted for the security of their present acts, betray a perpetual consciousness of their instability ®. Stat. 5 Rich. II. Statute refers to custom as a right to a writ of summons to parliament. Creation of peers by patent. 2. Provisions to enforce the attendance of Members of Parliament; Prerogative of the King to create Peers, and grant the right of Parliamentary Representation. An act to secure the regular attendance of persons in parliament was passed in 5 Richard II.', by which all persons and commonalties, who thenceforth had summons of parliament, were to come to the parliament in manner as they were bound to do, and had been accustomed in the kingdom of England of ancient time; and that whomsoever thenceforth had such summons, be he archbishop, bishop, abbot, prior, duke, earl, baron, bannerett, knight of county, citizen of city, burgess of borough, or other singular person or commonalty whatsoever, and should be absent, or should not come on such summons, if he could not reasonably and honourably (honestement) have excuse towards the king, was to be amerced and otherwise punished, according to what had of old time been before used in the kingdom in such case; and if any sheriff was negligent in making returns of the writs of parliament, or should leave out from such returns any cities or boroughs which were bound, and of ancient time used, to come to parliament, he should be punished in the manner accustomed to be done in the case of old time. This statute refers generally to custom, respecting the temporal, as well as the spiritual lords; and may be considered as tending to give a permanent title to those, whose ancestors had been summoned to parliament by writ, and might thereupon be deemed to have gained a right to like summons by usage; but, in practice, there are many instances of persons summoned to parliament, whose descendants were not so summoned. It has been said, that earls were always created by letters patent; but it should be remembered it was the highest official 8 3 Hume, 34. Rot. Parl. Richard II. 129. Stat. 2, c. 4. 1377-1399. dignity. The title of duke originated, as previously stated, RICHARD II. with Edward III.; Richard II. introduced the rank of marquis by patent, and also created a baron by letters patent, being the first creation of the dignity of baron by patent; and Henry VI. instituted the title of viscount". These grants by patent, had the effect of insuring the succession to the dignity, according to its limitations; and confined the title to such heirs as were therein specified. From this time, the descendants of all those who were then peers, and not so created by letters patent, could claim the dignity by prescription, if summoned by a general writ; and the apprehension that such would be the effect of a general writ, led, as in the case of Baron Vescy, to a specification in the writ of summons of the special heirs, to whom it was the king's intention the dignity should descend. The abbots and priors insisted that holding by barony alone, was not a sufficient ground for requiring their attendance in parliament; and that such only were bound to attend, as not only held by barony, but whose predecessors had been accustomed to attend; thus referring their attendance to ancient custom 3. Succession into the terms of sured according the patent. Attendance of abbots and priors influenced by in parliament usage. counties and boroughs. Usage is equally applied to counties, cities, and boroughs, Usage applied to as to the lords spiritual and temporal; and this statute, combined with that of 15 Edward II., gave a more fixed character to the legislative body. ; given to the legislative body. Preserving to the archbishops, bishops, abbots, and priors, Fixed character accustomed to be summoned to parliament, their dignities to the temporal peers, then in possession of the dignity, hereditary titles, qualified wherever the title had been qualified by its original and known creation, and in other cases descendible to all the heirs of the body of the then peer, or of his ancestor first summoned, and under whom he claimed his dignity; and to the counties, cities, and boroughs, which then sent members of parliament, it also confirmed their rights of representation: but applying to the rights and obligations of all, "usage,” as the evidence of those rights and obligations. 2 Selden's Titles of Honor, 680. 2 Dugdale's Baronage, 54. 10 Henry, 54. 3 Selden's Titles of Honor, 617, 618. 8 Henry, 160. The House of Lords, in the first Parliament of Richard II., consisted of the archbishops and bishops, twenty-two abbots, and two priors, one duke, thirteen earls, forty-seven barons, twelve judges and privy councillors. Dugdale's Summons, 299. 8 Henry, 154. RICHARD II. 1377-1399. Prerogative of the king to erect to increase the number of the commons. But the statute must be considered as having left open to the sovereign, the erection of new bishoprics with the dignity of lord of parliament annexed, or of founding abbeys and bishoprics, and priories with the addition of the like dignity, or the grant of the dignity to abbots and priors of more early foundation, together with the creation of peers, with new or ancient names of dignity, and with general or special limitations; and also the power of giving to other counties, cities, and boroughs, the right of sending representatives to parliament: in fact, all these powers were subsequently exercised by the king alone, as well as with the concurrence of the lords and commons in parliament. Perpetual right of boroughs to send representatives, after hav ing once been required so to do. Case of Lord James I. assumed also the power of granting the right of representation to the two universities of Oxford and Cambridge; bodies not falling under the description of cities and boroughs as used in this statute, and it is very doubtful whether they can be considered as within the description of the word "communities." The Parliament of 1640 seems to have recognised that the right of boroughs, if once required to send members of parliament, was a perpetual right, incapable of being defeated or lost by non user or otherwise, and writs were issued for the election of members for boroughs which, before 5 Richard II., had ceased to send members of parliament; but this was only acted upon partially. The House of Lords, on the contrary, in the case of Lord Frescheville, seems to have considered a writ of summons in the reign of Edward I., without any subsequent writ, as not having created, of itself, a prescriptive title to hereditary succession. Privy council summon an as pecuniary resources. 3. Pecuniary Impositions. Although Edward III. had claimed an arbitrary right to sembly to obtain levy taxes in cases of public necessity or danger, it was repudiated in 2 Richard II.; for, when the realm was in imminent danger of invasion, the privy council convoked an assembly of peers and other great men, probably with a view to avoid the summoning of a parliament. This assembly lent their own money, but declared that they could not provide a remedy without charging the commons, which could not be done out of parliament, advising that one should be speedily sum- RICHARD II. moned'. 1377-1399. pope. In 11 Richard II. complaint was made in parliament of Exactions by the impositions on the clergy of the kingdom by the pope, praying the king to provide remedy against such exactions; and in the same parliament it was granted by the king, that nothing should be levied or paid in burden or damage of the kingdom; and an imposition having been, notwithstanding, made by the pope on the clergy, and levied by authority of the archbishops upon their suffragans, without the common council and assent of the kingdom, writs were directed to the persons employed for the purpose, to forbear levying such impositions. levied without universal con These proceedings declare that, according to the constitu- No tax can be tion of the government, no imposition could be made on the people of England, without the common council and assent of sent. the kingdom; and that the king was advised that, there existed no other power besides parliament, by which any such imposition could be made: and though his grandfather had acted in derogation of this general right, Richard II. always had recourse to parliament to authorize any pecuniary imposition on the people. Attempts by the clergy to separate themselves from the laity. Assent of clergy not requisite for the enactment of The clergy made frequent, but unsuccessful, attempts to separate themselves from the laity, and, as a distinct estate of the realm, to have a negative on all the proceeding in parliament, and thus to place the separate conventions of the clergy as a control on the lords and commons but the assent of the clergy, as a body, was not essential to any statute or ordinance; because they had seats in parliament, only in respect of laws. their temporal estates; and the several statutes made, controlling the power of the see of Rome, were generally enacted, not only without the assent of the prelates, but, in some instances notwithstanding their express refusal to give such assent, and their declaration that, giving such assent, would have been in breach of their oaths of obedience to the see of Rome*. The deposition of the king occurred at a time, when everything seemed to contribute to his support, in the exercise of that arbitrary power which he had assumed. Those whom he had reason to fear, were removed either by violent death 1 2 Hallam's Const. Hist. 27. 3 Ibid. 348. 2 Rot. Parl. Richard II. 405. * 1 Rep. Dig. Peer. passim 335-347. Deposition of the king occurred, appeared to consupport. when everything tribute to his 1377-1399. RICHARD II. or banishment, and others were secured in his interest by places or favours at court. The great offices of the crown, and the magistracy of the whole kingdom, were put into such hands as were fit for his designs; besides which, he had a packed and servile parliament'. Events which But the same spirit of liberty which had been so slow to act under so many provocations, acted with the greatest vigour when it was least expected. The armies would not fight for the king against their tion of the king. Country; some of his ministers were hanged, particularly those who had been the great instruments of taxing and oppressing the people; and the king, in his distress, saw himself forsaken by those, whom he should have forsaken before; the very men who had so much flattered him with their excessive love and loyalty, and, like those mean insects which live with a little warmth, but shrink at any change of weather; they, who had contributed to all his errors in prosperity, transplanted their zeal into the new sunshine, as soon as his successor demanded the crown. 5 Bolingbroke's Hist. Eng. 64. |