BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF Hcnnj m. Sage 1891 Cornell University Library JN621 .P63 3 1924 030 495 471 olin Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030495471 CONSTITUTIONAL HISTORY OF THE HOUSE OF LORDS Offers HORACE HART, PRINTER TO THE UNIVERSITY A CONSTITUTIONAL HISTORY OF THE f;0]|j | 1 | HOUSE OF LORDS iV /V?Oi)/ ORIGINAL SOURCES LUKE OWEN PIKE, M.A. of Lincoln's inn, barrister-at-law, assistant keeper of the public records, editor of the "year books' published under the direction of the master of the rolls author of 'a history of crime in england.' etc. MACMILLAN AND CO. AND NEW YORK 1894 G PREFACE Though there are many Constitutional Histories of England and Histories of Parliament, there has, it is believed, hitherto been no Constitutional His- tory of the House of Lords. The reader in search of information could only extract it laboriously from disconnected passages in works of great length, or find it shaped as ammunition for the purposes of party warfare in political treatises. The scope of the present work is different from that held in view by such well-known historians as Hallam, May, Gneist, or Bishop Stubbs, or in the polemical essays of Prynne or Freeman. The materials used, though, to some extent, necessarily the same as those upon which they relied, have been largely drawn from other sources, and have been wrought to other ends. Statements of fact are consequently often inconsistent with those made in preceding, works on the Constitution, but the original authorities on which they rest have been indicated. It has, therefore, been thought needless to point out the variations, except in some very remarkable instances. One example may, perhaps, suffice to show that the reasons for differing from previous authors of vi PREFACE repute could not always be set forth with a due regard for space, and may at the same time serve to illustrate the principles of original research on which the book has been written. It was stated by Blackstone, nearly a century and a half ago, that the whole Act for the Uniformity of Common Prayer was passed ' with the dissent of all the Bishops' and that the words 'Lords Spiritual' were, for that reason omitted throughout. The statement has been repeated again and again in successive editions of his Commentaries, and in the latest editions of Commentaries founded upon his. Hallam also has asserted in his Constitutional ' History that all the Bishops ' protested against the Bill. Blackstone and his followers give as their authority Gibson's Codex Juris Ecclesiastici. Gibson, however, says not that the whole Act, but only that a portion of it, was passed by the ' Lords and Commons ' with- out any use of the word ' Spiritual,' ' because all the Bishops present dissented,' and he cites D'Ewes's journals in support of his proposition. In the edition of the Statutes entitled the ' Statutes of the Realm,' it is again said that a portion of the Act was passed without the assent of the Lords Spiritual, and again upon the authority of D'Ewes's Journals. Upon reference to the passage cited it is found that D'Ewes does not speak either of all the Bishops, or even of all the Bishops who were present, as dissenting either from the whole or from any portion of the Bill, but mentions only the Archbishop of York and eight Bishops. Hallam's authorities are the Parliamentary His- tory and Strype's Annals. The Parliamentary PREFACE Vti History affords no for assertion warrant the ; Strype's Annals show only the names of the dissenting Arch- bishop and eight dissenting Bishops, though they are in one passage described as ' all the Prelates.' D'Ewes, who professes to have obtained his information from the original Journals of the House of Lords, alleges that the Bill was read a third time on the 28th of April, 1559. When, however, the printed Journals of the House of Lords are con- sulted it is seen that there is no record of any sitting between April 22 and May 1. So far, therefore, as printed documents are concerned, there is absolutely no authority for a very important statement which has passed unquestioned during some five genera- tions. The statement is, however, not improbable in itself, and the question naturally arose whether it could be established by any Journals of the House of Lords which have, for any reason, not been printed. Mr. E. Fairfax Taylor, of the Judicial Office of the House of Lords, whose very able Calendar of documents of the House is in course of publication, for the Historical MSS. Commission, has most kindly instituted a search, and I cannot too warmly express my thanks for the courtesy he has shown and the pains he has taken. He has succeeded in tracing the MS. Journal for the year 1559, which has served as the basis of the printed Journal. As in the latter, so in the former, the days between April 22 and May 1 are missing. The pages, how- ever, are in due order of succession, and there is no reason to suppose that the MS. ever contained anything which has not been printed. It is not known that the original Journals of the ' viii PREFACE period are in existence elsewhere. In the library of the Inner Temple there are some copies of so-called Journals of the House of Lords which I have in- spected, and in which the missing days are included. They do not, however, give the names of the Lords who were present. They show that the Bill was read a third time on April 28, and that the nine prelates dissented, but nothing more. They are evidently taken from the document with which D'Ewes and Strype were acquainted, which must have been merely a short note or abstract, and not a true Journal of the House in the ordinary sense of the term. D'Ewes, indeed, complains, in one passage, of the carelessness shown by the Clerk of the Parliaments, and it seems more than probable that no complete Journal was ever drawn up. In that case it would be impossible to prove the asser- tions made by Blackstone, Gibson, and Hallam, which have, in any case, been made on insufficient authority. The omission of the words ' Spiritual Lords from any particular Act, or portion of an Act, in the reign of Elizabeth, affords no safe ground for an argument that they all dissented. It was at that time a common practice to omit all mention not only of the Lords Spiritual, but also of all the Estates of the Realm from individual Acts or Chapters of a Statute, a not unusual form being ' by the authority of this present Parliament.' There was, however, a general heading to the Roll of Parliament, upon which all the Acts of a Session were enrolled ; and the heading to the roll of 1559 is to the effect that the Act for the Uniformity of Common Prayer was passed, PREFACE ix like the rest, ' with the common assent of all the Lords, as well Spiritual, as Temporal, and of the Commons.' Having arrived at these curious and somewhat contradictory facts, I had to decide whether the mode in which the Act was passed should be mentioned in support of a portion of the text (p. 327), in which the relation of the Spiritual Lords to legislative power is considered. I came to the conclusion that (except the general heading of the Parliament Roll) there was not sufficient evidence on which to base any definite statement. The heading, however, might be a mere form implying no more than the consent of a majority of the House of Lords. The number of the Bishops present, and their action, could be authoritatively ascertained only from the original Journal of the House; and the condition in which the Journal is found is of itself sufficient to suggest the necessity of the utmost caution. I hope, therefore, I may venture to ask those who find some familiar statement omitted, or meet with a statement which they did not expect, to believe that the cause is not in every case inadvertence. The publication of this book at a time when there is some political agitation in reference to the House of Lords is an accident. The work has been written without any political intention, and, to the best of my belief, without any political bias. I trace back the first idea of it to a question which a learned friend asked me, long ago, as to the mode of trying John Fisher, sometime Bishop of Rochester. In the course of the twelve years during which I have been Editor of the Year Books, many points relating to the peerage have forced x PREFACE themselves upon my attention. I have found Bishops and Abbots commonly described as Peers of the Realm, and, for that and other reasons I have had to consider the status of Peers in general, their original position in the constitution, and the changes which it has undergone. In excluding politics I have been compelled to exclude many matters of controversy. It could, I think, serve no good purpose to mention all the Bills which have been accepted in the House of Commons and rejected by the House of Lords, or which have been first brought into the House ofLords and have been sent thence to the House of Commons.