2 the lords spiritual and temporal, and all the commons, was "created and ordained heir apparent, to have and enjoy the realm in time to come when God it should will." Four years later the succession was limited to the prince and the heirs of his body, and in default upon his brothers in the order of seniority. In 1406 the crowns of England and France were resettled upon the king and the heirs male of his body. In the same year, however, this restriction was removed, and the crown finally settled upon Henry and the heirs of his body without limitation. In thus accepting the crown for himself and his descendants through the choice of the three estates, Henry was not only compelled to assume a relation of dependence upon the parliament as a whole, but he was also obliged to enter into special obligations to each estate separately, from which he found release only in the grave. and the against While the parliament was careful to require that the new Henry IV. sovereign should reign as a constitutional king, the prelates, church: as the special defenders of the national church, were no less the statutes careful to demand that he should become the champion of heresy. orthodoxy, and the scourger of the growing heresy. The canon law, the ecclesiastical law of medieval Europe, regarded heresy as a crime; and while the church undertook to visit the offence with such spiritual penalties as excommunication, it also looked to the state to supplement its work by the infliction of civil penalties in the form of imprisonment and capital punishment. Such a conception of heresy and its punishment seems to have been imbedded from the earliest times in the civil and ecclesiastical law of the English kingdom. Prior to the enactment of the statutes against State of the law prior to heresy, although an English bishop could excommunicate, the statthe offender could not be put into prison save by the king's utes. writ of de excommunicato capiendo; and although heresy was an offence punishable by death, the heretic could only be burned, if at all, by virtue of the writ de hæretico comburendo. The scantiness of material illustrative of the earlier 1 Rot. Parl., iii. p. 434. 2 Ibid., iii. pp. 525, 575. 8 Ibid., iii. pp. 575, 576. 4 Ibid., iii. p. 581. As to the nature of this writ, some times called, from the bishop's certifi- 6 "We find among our ancient pre- Wycliffe and the Lollards. Statute of 1382 to which the commons did not assent. Wycliffe died in 1384. practice can be easily accounted for in light of the fact that the English medieval church, down to the close of the fourteenth century, was exceptionally free from heresy and consequent religious persecution. Not until after the advent of Wycliffe out of whose teachings grew the host of dissenters from the orthodox creed of the ancient church generally known as Lollards was the machinery for the suppres sion of heresy in England put into active operation. During the period of reaction that followed the Peasant Revolt, which the disciples of Wycliffe were supposed to have instigated, the first appeal was made to parliament for the suppression of heresy by statute. In the parliament which met in May, 1382, Archbishop Courtenay procured the enactment of a statute which provided that commissions should issue out of chancery, directed to the sheriffs and other officers in pursuance of certificates from the bishops, to arrest all persons certified by the bishops to be preachers of heresy, and their abettors, and to hold them in prison until they should justify themselves "according to reason and the law of holy church." But in the parliament which met in October of the same year, the commons petitioned that this statute should be annulled, for the reason that it had never received their assent; and the king returned a favorable answer to their petition. After that event the prelates possessed no means for the punishment of heresy save such as were contained in the old canon law process. Thus the law stood at the time of Wycliffe's death in 1384. The death of the great schoolman and pamphleteer did nothing, however, to check the spread of the new doctrines which he had propounded not only to the learned in the universities, but to the rank and file of the English people. which is thought by some to be as So widespread and threaten ecuted by virtue of the king's writ, and not under the statutes. 1 Stat. 5 Ric. II. st. 2, c. 5; Statutes, ii. p. 25. 2 Rot. Parl., iii. p. 141. In the statute the assent of the lords and commons is not expressed. Hallam says, "Nevertheless, the pretended statute was untouched, and remains still among our laws, unrepealed, except by desuetude, and by inference from the acts of much later times." - Middle Ages, vol. iii. p. 87. De hæreti 1401. ing had the religious revolt become by the end of the reign of Richard II., that Archbishop Arundel, the bitter foe of the Lollards, in supporting the revolution through which Henry IV. was raised to the throne, was careful to commit the new sovereign to a policy of active persecution. In 1399 a convocation was held in which articles denouncing the Lollard doctrines were drawn up,1 and in 1401 Arundel procured the passage of the famous statute De hæretico comburendo,2 in The statute which it was provided that no one should presume to preach co combuor teach, in public or private, in any diocese, without the rendo, license of the diocesan first obtained, except curates in their churches; that no one should write any book or teach in any school or conventicle the new doctrines; and that all who possessed forbidden books or writings should in a given time deliver them up. All offenders against the act the bishops were permitted to arrest and detain in their prisons until they should make canonical purgation, or abjure their opinions; and if convicted they should be imprisoned and fined in proportion to their offence. If after conviction the offender should refuse to abjure, or after abjuration should relapse, the sheriff of the county, or the mayor or bailiff of the nearest borough should, when required by the diocesan, be present at the sentence; and after it was pronounced it became his duty to receive the condemned, and before the people in a high place cause him to be burned as an example and terror to others. The practical effect of this act was to confer upon the bishop the power to try and convict one accused of heresy, without the assent of a synod, and the further power to require the sheriff to burn the condemned without the consent of the crown. And yet, comprehensive and cruel as were the powers thus bestowed, another statute still more comprehensive and cruel was yet to come. In the The final and most midst of the excitement and alarm which followed the attempted insurrection of the Lollards under the leadership of ute passed Sir John Oldcastle, a statute was passed in the second year Henry V. of Henry V. which naturally divides itself into two parts. The first part, after repeating in substance the provisions of 1 Wilkins, Conc., iii. p. 238 seq. 125. As to the tenor of the act, see Reeves, Hist. of Eng. Law, vol. iii. pp. 2 Hen. V. st. i. c. 7; Statutes, ii. pp. in the 2d of Henry IV. and the commons. Their grow ence based ing influ upon the money power. the act of 1401, added to the penalties to which the Lollards were previously liable by providing that those who should be convicted before the ordinaries, and delivered over to the secular power, should forfeit lands, goods, and chattels, substantially as in case of felony. The second part of the act entered a new field by providing that justices of the king's bench, of the peace, and of assize are now empowered to inquire (that is, take indictments) of heretics and their maintainers, and to award process for their arrest. Within ten days after arrest the accused were to be delivered to the ordinary by indenture for trial in the church courts.1 Under and by virtue of this final statute against the Lollards took place most of the fanatical executions which disgrace the records of the fifteenth and sixteenth centuries. The conclusion has been heretofore reached that by the end of the fourteenth century the commons had not only won the right to participate in all the higher functions of government, but that they had become the more active and aggressive force in the national council reconstituted as an assembly of estates. During the first thirteen years of the fifteenth century, occupied by the reign of Henry IV., the rising influence of the commons reached the highest point of its mediæval growth, a point which it did not again reach until after the lapse of two hundred years. Although the commons, as an estate of the realm, assented in the parliament of 1399 that the Duke of Lancaster should reign over the kingdom, it was less from the fact of their participation in the election of the new sovereign than from their right to assent or dissent when grants of money were asked that their influence throughout the reign was made effective. new king was poor, and the demands upon him for money were great. In this condition of things the commons were not slow to perceive their opportunity. As early as the parliament of 1401 the lower house, taking advantage of the king's necessities, began to insist upon a clear and final concession of the constitutional principle that the grant of supplies should be preceded by answers from the crown to petitions for the redress of grievances. Although this de 1 Cf. Reeves, Hist. Eng. Law, vol. 2 See above, pp. 500-504. iii. pp. 452, 453. The to make redress tablished. mand was met by a peremptory refusal, the effect of the refusal was soon overcome by the practice which grew up shortly after that event of delaying the grant until the last day of the session, by which time all the more important petitions were probably disposed of. The right to make The right supply depend upon redress was thus secured by the employ- supply dement upon the part of the commons of a simple yet irresist- pend upon ible expedient.1 Six years later (1407) a collision occurred finally es between the two houses that led to a declaration on the part of the crown which "seems to have placed the king and the two houses of parliament each in the separate and independent situation in which they now respectively stand."2 The outcome of this collision, which has been heretofore consid- Two vitally important ered at length, was the definition of the two vital principles principles of constitutional law which declare, first, that all money tional law bills shall originate in the house of commons; second, that defined in the king shall not take notice of matters debated in parliament until after a conclusion has been reached in each house, and such conclusion brought before him by their consent and authority. And yet, in spite of the serious encroachments which the parliament thus made upon the monarchy under the new dynasty, Henry IV. was bold enough to declare in 1411, when a quarrel arose with the commons over some measure that had passed in the preceding parliament, that he intended to enjoy all the liberties and prerogatives which had ever belonged to any of his predecessors.* of constitu 1407. 4. Some account must now be given of the growth of the The contin continual council which during the reigns of the Lancastrian ual council kings comes prominently into view, not simply as a dependent body of councillors who assist the king in conducting the executive business of the kingdom, but rather as a distinct corporate entity, which stands midway between the king and the parliament, through which the latter is able to limit and control the exercise of the royal authority. In order to execute the mass of fiscal, judicial, and administrative work which the growth of the royal power after the Conquest concentrated around the person of the king, it became necessary to organize out of the great council a smaller body composed 1 See above, pp. 524, 525. 8 See above, pp. 525, 526. 4 Rot. Parl., iii. p. 658. |