APPENDIX.

No. I.

GREAT COUNCILS.

THERE are three places in this history (see pp. 74. 116. 173.) in which I have ventured an opinion that what is called by our historians a Parliament was in reality a Great Council. The positive and particular grounds for the conjecture may be best understood in connexion with the narrative, and have therefore been explained in the several places. Certain general objections which may perhaps suggest themselves, will be answered more conveniently here.

It may be objected in the first place that the point being one of considerable constitutional importance, it is not likely that Bacon would have overlooked it. Polydore Vergil indeed, who was a foreigner; Hall, who merely followed Polydore, using no independent judgment of his own; Holinshed who followed Hall; even Stowe and Speed, who though diligent and original explorers were not statesmen and constitutional lawyers; - all these might easily make the mistake and overlook the difficulties which it involves. But Bacon's acquiescence in such an error, if error it be, is not so easily accounted for. So familiar as he was with the practical working of government and the practical solution of state-problems; so inquisitive as he was into the particular ways and methods of Henry the Seventh, regarded as a study in the art of government; so learned as he must have grown, by thirty years' service as a law officer of the Crown, and more than thirty as a member of Parliament, in constitutional precedents; so diligent and vigilant as he was in observing what he calls the "real passages" of affairs, -the real means by which ends were brought about; it must be admitted that he was a man very unlikely to overlook the evidences of such a fact and quite certain not to overlook the importance of it. The adoption therefore by Bacon of Polydore Vergil's story, is a negative argument against my conjecture which it is necessary to remove.

But on referring to the particulars, it will be found that the direct evidence of the fact in each case is drawn almost entirely from sources which were not within Bacon's reach. At the time he wrote, there was no accessible collection of state-documents resembling Rymer's Fœdera, and apparently no accessible record by which it could be ascertained at what precise date the several Parliaments in this reign were called. The Herald's narrative, which supplies the only positive evidence we have as to the first of these Great Councils, it is clear that he had not seen. Henry the Seventh's privy-seal, which contains positive evidence as to the last, is a single sheet, which may not have been in Sir Robert Cotton's possession at the time, and if it was may easily have been overlooked; and without it, the notice in the old Chronicle, though distinct and of great weight, would have been hardly sufficient perhaps to establish the fact. Now if we should set aside all the evidence, direct or inferential, which is derived from these sources, there would really be no ground for suspecting the accuracy of Polydore's narrative. Therefore that Bacon did not anticipate the conjecture, is not in fact any presumption against it.

Another objection may be drawn from the silence of contemporary historians as to the fact, and of the constitutional writers of the next century as to the practice. It may be urged, and urged with much appearance of reason, that if the calling of a Great Council, such as I suppose these to have been, was in those days a new or a very unusual thing, it would have made a noise at the time; and then how came Fabyan, or Polydore, or Hall, who were contemporaries, not to have heard of it? And that if on the contrary it was a thing frequent and familiar to people in the days of Henry the Seventh, it must have been familiar to students of the constitution in the days of Elizabeth and James the First; and then how came Sir Edward Coke, in the fourth part of his Institutes, to give an elaborate account of the constitution and functions of the Council, without alluding to a practice of such considerable constitutional importance 1; or how was it that during the latter half of James the First's reign, when the government was in continual embarrassment from the opposition of the Lower House of Parliament, the experiment of reviving this practice, and calling a "Great Council" for deliberation and advice, was never (as far as I know) proposed for consideration or once mentioned, at least by that name? 2

In the first part of the Institutes (ii. 10. 164.) Coke mentions the Magnum Concilium as meaning sometimes the Upper House of Parliament; and sometimes, when Parliament was not sitting, the "Peers of the realm, Lords of Parliament, who are called (he says) Magnum Concilium Regis." But he says nothing of any peculiar function belonging to it, or of the occasions on which it was called.

* The Council before which Robert Earl of Essex was charged, heard, and censured on the 5th of June, 1600; and that before which James's Learned Counsel recom

Fortunately it is not necessary to answer this question; for there is no doubt about the fact. That "Great Councils," precisely such as I suppose these to have been, were frequently summoned during the three reigns of the House of Lancaster, is a fact established by direct evidence altogether conclusive. In the Proceedings and Ordinances of the Privy Council, edited by Sir Harris Nicolas in 1834, there is distinct mention made of not less than sixteen "Great Councils" called during the sixty-one years of the Lancastrian dynasty, and there are traces of more. The latest of which there is record there was in 1459; only twenty-six years before the accession of Henry the Seventh. And we are not to conclude, because this is the last recorded, that it was the last which took place for the records of the proceedings of the Council from the end of Henry the Sixth's to nearly the end of Henry the Eighth's reign are almost all lost; and therefore the negative evidence is of no value. Positive evidence on the other hand is not wanting to show that the practice was in use at least seventeen years after. Twice in the Paston Correspondence we meet with news of the Council then sitting; which on both occasions the editor supposes (see table of contents) to mean Parliament; though it is certain that no Parliament was sitting at the time. One is stated to have ended on the 3rd of March 1473-4, the last day of Edward the Fourth's 13th year; the other as having begun on the 13th of February, in his 16th year; that is, 1476-7. See Vol. II. pp. 158. 205. This brings us within nine years of Henry the Seventh's accession. So that, even if that were the latest precedent, there would be nothing strange either in the name or the thing.

Of the distinctive character and functions of these Great Councils the clearest and most complete description which I have met with is in Sir Matthew Hale's Jurisdiction of the House of Lords, published by Hargrave in 17961; but the fullest and most authentic evidence,

mended that Sir Walter Raleigh should be charged and heard in 1618; were very like Great Councils both in composition and in function; but I do not find any allusion to the precedent in either case.

"This magnum consilium was of two kinds; viz. a magnum consilium out of Parliament, and a magnum consilium in Parliament. The former of these was commonly upon some emergent occasion, that either in respect of the suddenness could not expect the summoning of Parliament, or in respect of its nature needed it not, or was intended but as preparative to it. . . . . But the form of these Great Councils was varied. For sometimes only some few of the prelates and nobility were called to it, and none of the consilium ordinarium, as claus. 33 E. 3. m. dors. At other times not only the nobility, prelates, and consilium ordinarium were called, but also there went out writs to every sheriff to return one knight for each county, and to divers cities and boroughs to return one citizen or burgess, as was done claus. 27. E. 3. m. 12. dors. upon the making of the ordinance of the staple. But this magnum consilium had nothing of legislative power nor jurisdiction; and therefore the ordinances of the staple were after enacted by Parliament to supply the defect of a law. I never yet saw any private petition, or footsteps of jurisdiction exercised by such a Grand Council.-These Grand Councils have been rarely summoned of late years; businesses of state being usually despatched by the Privy Council, and if of very great importance in Parliament. The

and that which comes nearest to the times in question, is to be found in the records published by Sir Harris Nicolas.

"They appear to have been summoned (he says) whenever affairs of greater moment occurred than the 'Continual Council' thought proper to determine, but were not of such a nature or such a degree of importance as to render it advisable to bring them before Parliament." The Peers spiritual and temporal were considered as belonging to the Great Council of course; "Lords of the Great Council" appears to have been one of their titles. And it is probable that in ordinary cases it was composed (according to Mr. Hallam's conjecture; "Middle Ages" vol. iii. p. 213.) of these alone, in conjunction with the members of the "Continual" Council. But it is certain that on some special occasions many commoners were joined with them; specially selected from various qualities, professions, and localities, according to the nature of the question in debate. Thus, in the second year of Henry the Fourth, on the 20th of July, 1401, letters were addressed to the "Continual Council," commanding them (pour certaines chargeantes matires touchantes nous et notre roiaume) to summon all the Prelates, Earls, and Barons of the realm, and from four to eight of the most sufficient and discreet Knights of each County, to attend a Council at Westminster on the Feast of the Assumption next ensuing. And a second letter was addressed to them on the following day commanding that a certain number of Esquires should be likewise summoned to attend this Council. The object was to have their advice with regard to the war with France; and it appears from a list annexed that the Council was attended by about 150 Knights and Esquires, besides the Lords spiritual and temporal. (See Proceedings and Ordinances of the P. C. vol. i. p. 155., and Rymer viii. 213.)

Again, a minute of Council dated the 7th of March, 1442-3, (21 Hen. 6.) directs that there be "made letters under privy seal to all the King's freemen, and also to the King's Great Council, to be with the King in his Great Council at Westminster at the 15th of Pasque, all excusations ceasing, for the good of his realm, lordships, and subjects." (Proceedings and Ordinances, v. p. 237.) The occasion of this was also a French war.

I have selected these two instances as containing the most distinct mention that I can find of the summoning of persons who were not members of the King's Council by rank or office, and of their character and quality. In other cases they are less distinctly mentioned as 66 et plusieurs autres,” or “et aliorum ad illud convocatorum." In others, and indeed in the majority, there are no traces

only Grand Council that hath been in my remembrance was that at York, at the coming in of the Scots."-Hale's Jurisdiction of the House of Lords, chap. 2. § 3.