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ledged head of his people the lord to whom all the
nobles of the land owed fealty and service. He was the
fountain of honour, and the dispenser of the national
wealth. He appointed the time and place for meetings
of the Witan, and laid before them whatever matters
required their advice or consent, exercising over their
deliberations the influence which properly belonged to
his exalted station and personal character. If weak,
vacillating, or unworthy, his powers would necessarily



r Freeman, v. 1, p. 121 Ib. p. 122.



56 COUNCILS UNDER PEEROGATIVE GOVERNMENT.

be impaired, and it would be the province of the Witan
to restrain him from acts of misgovernment, and to
demand security for the due administration of the royal
functions. Strictly limited by law in the exercise of his
prerogatives, the personal authority of an ancient English
sovereign, if at all worthy of his position, was wellnigh
unbounded.*

After the triumph of the Norman arms, on October
16, 1066, at the battle of Hastings, the crown of Eng-
land was transferred to William the Conqueror by a
forced election of the English Witan. u

Election The form of an election continued to be observed, as a general

rule, until the accession of Edward I., when the principle prevailed,

kings. that immediately on the death of the king, the right of the crown
is vested in his heir, who commences his reign from that moment.*
Nevertheless, in the ceremonial observed at the coronation of the
successive kings of England to that of Henry VIII. inclusive, there
continued to be used forms wherein the recognition, will, and con-
sent of the people are distinctly asked, and the kings were declared
to be ' elect and chosen ' by ' the three estates of the realm. ' w But
in the reign of Henry VIII., Parliament definitely determined the
succession of the crown to be in Edward, Mary, and Elizabeth ; and
in default of issue from them, even empowered the king to bequeath
the crown to whomsoever he would, provided only that his choice
should be made known, ' as well to the lords spiritual and temporal,
as to all other his loving and obedient subjects, to the intent that
their assent and consent might appear to concur therein. ' x After-
wards, Queen Elizabeth's title to the crown was formally recognised
by Parliament, y And upon her decease, without issue, Parliament
acknowledged that the English crown ' did, by inherent birthright
and lawful and undoubted succession,' descend to James I., as ' the
next and sole heir of the blood-royal of this realm. ' z Upon the ab-
dication of James II., Parliament conferred the crown upon William
and Mary, and afterwards regulated the succession in the Protestant
line of the descendants of James I.



* Freeman, v. 1 , pp. 123-126, 163 ; 1838, pp. 99, 103.

Kemble, v. 2, p. 232 ; Palgrave, v. 1, 25 Hen. VIII. c. 22 ; 28 Hen.

p. 657 ; Stubbs, v. 1, p. 141. VIII. c. 7 ; 35 Hen. VIII. c. 1.

u Stubbs, v. 1, p. 267; Freeman, " 1 Eliz. c. 3.

v. 1, p. 163. * 2 James I. c. 1.

* Ib. p. 340 ; Allen, Royal Prerog. 1 W. & M. sess. 2, c. 2; 12 & 13
pp. 44-47. Will. III. c. 2. And see Freeman's

w Chapters on Coronations, Lon. Growth of Eng. Const, c. iii. And



ANGLO-SAXON CONSTITUTION. 57

During the reign of this sovereign, and of his immediate
successors, the character of the monarchy underwent a
gradual change, but far more through the spirit in which The power

of the

the government was administered than by any direct crown,
action of the legislature. For William I. claimed to be
the lawful successor of the Saxon kings. Inheriting
their rights, he professed to govern according to their
laws. b

The laws known as those of Edward the Confessor were so-called
because they were solemnly ratified by him, ' as the condition and
price of his restoration to the throne of his ancestors.' They were
chiefly those contained in the comprehensive statutes which Canute,
king of all England, enacted at Winchester, by the advice of his
Witan, in the years 1017 and 1033.

But with the new dynasty there came in a new nobility
devoted to their Norman lord, who gradually displaced
the nobles of the land in offices of rule, and obtained
possession of their estates. Thus the power of the crown
steadily increased, and the authority of the national
councils was proportionably impaired. ' The idea of a
nation and its chief, of a king and his councillors, al-
most died away; the king became half despot, half mere
.feudal lord. England was never without national assem-
blies of some kind or other ; but, from the Conquest in
the eleventh century till the second burst of freedom in
the thirteenth, they do not stand out in the same dis-
tinct and palpable shape in which they do both in earlier
and later times. ' d Nevertheless, the liberties of their
Saxon forefathers were always fresh in the recollection
of successive generations of Englishmen, until, by slow
degrees and after many struggles, they succeeded in re-
covering them not indeed in their original shape, but
in a form better adapted for the altered condition of
the commonwealth.



the West. Rev. Jan. 1882, on the e Palgrave, v. 1, p. 48.
Coronation Oath, its history, &c. d Freeman, v. 1, p. 122. And

b Freeman, v. 1, pp. 2, 4, 163. Stubbs, c. ix.



58 COUNCILS UNDER PREROGATIVE GOVERNMENT.

The Saxon The picture of the political constitution of England
under her Saxon kings, which we have sketched from
the pages of the learned writers who have elaborately
investigated the subject, is replete with interest and in-
struction. In a primitive state of society, and amongst
a simple, loyal-hearted people, such a form of govern-
ment was admirably adapted to their wants. By it
freedom was maintained, life and property protected,
and the national welfare advanced. But it may be
doubted whether a system suited for such a time would
have stood the test of stormier days, or sufficed to give
adequate protection to the king and to his councillors
under less favourable circumstances. Difficult prob-
lems in the art of government require the experience of
centuries to solve them aright. The proper relations
between the sovereign and his immediate advisers, the
position which both should occupy towards the national
legislature, the true sphere and appropriate functions of
Parliament, are all of them questions of the highest im-
portance to the national welfare. And as we proceed
with our narrative, we shall find every one of these
questions arising, and obtaining, in their turn, a suitable
solution. Unconsciously, and oft times without apparent
sequence, the efforts of each succeeding generation have
been overruled to bring about the final issue. The
vigour with which at one period the authority of the
crown has been asserted, and the wider influence and
more independent action claimed for the councils of the
crown at another, have both alike contributed to the
formation of our present system. And, happily for
England, each new development as it arose was a result
of the law of growth, and not the effect of revolution,
and is clearly traceable to constitutional principles which
existed in the germ in the ancient Saxon polity. 6

Norman The special characteristic of the Norman period was

See Stubbs, v. 1, p. 637; Macaulay, Hist, of Eng. v. 1, p. 25.



ANGLO-SAXON CONSTITUTION. 69

the growth of a new administrative system, deriving its
origin and strength from the royal power. The foun-
dation of this system was accomplished in the reigns
of William the Conqueror and his three successors
William II., Henry I., and Stephen/ During this epoch
the kings of England were practically absolute. The
Witenagemot still subsisted, under the title of the Great
Council of the realm, but it rather resembled an assembly
of courtiers, occasionally convened for state purposes,
than an organised deliberative body, subordinate only in
privilege and importance to the private and ' continual '
council of the king. g

From the first introduction of royalty into Britain, Advisers
the sovereign has always been surrounded by a select of the

CI O WH

band of confidential counsellors, appointed by himself,
to advise and assist him in the government of the realm. h
It may be confidently asserted that there is no period of
our history when the sovereign could, according to the
law and constitution, act without advice in the public
concerns of the kingdom. 1 ' That the institution of the
Crown of England has always had a Privy Council inse- .
parable from it, is a fact which ought never to be lost
"Sight of. This council has always been bound to advise
the crown in every branch and act of its executive con-
duct.' j And it is, in fact, the only council, combining
in itself both deliberative and administrative functions,
which is authoritatively recognised by the law and
constitution of England. The number of members
composing this council has varied at different periods,
according to the king's will, ' but of ancient time there
were twelve, or thereabouts. ' k

At the era of the Norman Conquest there appears



f Stubbs, c. xi. p. 20; Kemble, v. 2, p. 188 ; Hearn,

* lb., v. 1, p. 356. Gov. of Eng. p. 18; Courtenay, Life

h Palgrave, v. 1, p. 325 ; v. 2, of Sir Wm. Temple, v. 2, p. 57.

p. 348 ; Stubbs, v. 1, pp. 149, 343. J Smith, Parl. Remem. (1862), p. 3.

' Palgrave on the King's Council, k Coke, Fourth Inst. p. 53.



60 COUNCILS UNDER PREROGATIVE GOVERNMENT

A.D. 1066. to have been three separate councils in existence : one,
The king's composed of nobles, who were assembled on special
llls * occasions by special writs, and who, together with the
great officers and ministers of state, formed the magnum
concilium ; another, styled the commune concilium, or
general parliament of the realm. These two councils
were mainly identical in their general character and re-
lations towards the sovereign. Their chief distinction
seems to have been in the greater care shown in sum-
moning the members of the commune concilium, to advise
the king in more general matters, and especially when
grants of money were required. The third council
was known as the concilium privatum assiduum ordina-
rium, or, more frequently, the king's council. It com-
prised certain select persons of the nobility and great
officers of state, specially summoned thereunto by the
king's command, and sworn, and ' with whom the king
usually adviseth in matters of state and government.'
This council or probably a committee of it, consisting
of the judges, presided over by the king, or (in his
absence) the chief justiciary served also as the su-
preme court of justice, which, under the denomination
ofthe curia regis, commonly assembled three times in
Ordinary every year, wherever the king held his court. 1 The
council. king's ' ordinary ' or ' continual ' council was equivalent
to that which was known in later times as the Privy
Council ; although, meanwhile, it differed widely in its
organisation.

' It was by a distribution of its business to subordinate com-
mittees that the functions of the Privy Council, in all ages, were
performed.'" 1 The legal committee, above mentioned, afterwards
developed into a separate ' council learned in the law,' of which the
only remains left at the present day is in the titular distinction of
Queen's Counsel, accorded to leading members of the legal profession, 11



1 Hale, Jurisdiction of House of m Macqueen, Prac. H. of Lords,

Lords, pp. 5-9 ; First Lords' Report, pp. 673, 674.

pp. 20-23 ; Lords' Pap. 1820, v. 10 ; " Hearn, Govt. of Eng. pp. 295-

Stubbs, v. 1, p. 564. 297.



AFTER THE NORMAN CONQUEST. 61

while the functions of this body are now fulfilled by the Judicial
Committee of the Privy Council.

But, apart from the fact that one was temporary and
occasional, and the other permanent, there seems at
first to have been but little difference between this body
and the other principal councils. Leading nobles were
members of the ' continual ' council, and at meetings of
the great council they naturally occupied a prominent
place, either as members or assistants of that august
assembly.

The permanent council under the early Norman Perma-
kings consisted of the great officers of state namely, council.
the chancellor, the great justiciary, the lord treasurer, iri . a
the lord steward, the chamberlain, the earl marshal, the
constable, and any other persons whom the king chose
to appoint. It also included the archbishops of Can-
terbury and of York, who claimed the right to form
part of every royal council, Avhether public or private.
Besides these persons there were occasionally present
the comptroller of the household, the chancellor of the
exchequer, the judges, the king's Serjeant, &c. This
body was then known as the curia regis, otherwise
styled the aula recjia, or court of the king, and its
powers were immense and undefinable. Its duty was
to assist the king in the exercise of his royal preroga-
tives, and to give its sanction to acts done by him in
virtue of those prerogatives the members thereby
making themselves responsible for the acts of the king. p
Thus, it was the executive. It acted also as a court of
law. It took part in acts of legislation. In fact, ' the
king, who was at once the ruler and judge of the whole
nation, exercised the powers which he possessed, either
directly (and this he did to a greater extent than
modern students are apt to suppose) or indirectly,
through the instrumentality of his great officers.' For

See post, vol. 2. 1829, v. 10, p. 21 ; Stubbs, v. 1, pp.

P First Lords' Report, Lords' Pap. 387, 436.



62 COUNCILS UNDER PEEROGAT1VE GOVERNMENT.

in considering ' the interchange of advice between the
king and his nobles ' during this period, we must divest
ourselves of modern notions of constitutional authority,
and understand that, ' according to the ideas prevailing
in the eleventh century, it was rather the king's privi-
lege than his duty to receive counsel from the great
men of his kingdom. Their recommendations were
not, like the advice of modern parliaments or ministers,
commands veiled under a polite name, but in the strict-
est sense counsel ; ' q nevertheless, there were certain
things which the king was never able to accomplish by
his mere prerogative. Thus, he could neither legislate,
nor impose new taxes, without the consent of his Par-
liament. And he was bound to rule in accordance with
the laws of the realm ; and if he broke those laws, his
agents or advisers were, from a very early period, in
some shape or other, held accountable for his misdeeds
to the national assembly/ Moreover, it was the right
and duty of the king to demand and receive advice from
his great council under all circumstances of difficulty ;
a safeguard which the nation always jealously main-
tained, even though the supreme will of the monarch
should be afterwards enforced, in accordance with his
acknowledged prerogative. Always remembering, how-
ever, that the king of England was never an absolute
monarch, but was himself subject to the law. Bracton,
A.D. 1250. writing in the thirteenth century, says that it is ' the
law by which he is made king, ... so that if he were
without a bridle, that is, the law, his great court ought
to put a bridle upon him. 8 For though the king is our



i The Privy Council : the Arnold have been much indebted to both

Prize Essay, 1860. By A. V. Dicey, these works for my sketch of the

B.A., pp. 3-6. This able essay pre- history of the Privy Council under

sents, in a popular form, the results of prerogative government,

the researches of Sir Harris Nicolas, ' Macaulay, Hist, of Eng. v. 1,

in his learned prefaces to the ' Pro- pp. 20-32.

ceedings and Ordinances of the Privy s Quoted by Forster, Debates on

Council of England, 'from 10 Rich. 1 1. Grand Remonstrance, p. 28. And

(1386) to 33 Henry VIII. (1542). I see ante, p. 261.



AFTER THE CONQUEST. 63

sovereign lord, he does not possess the sovereign au-
thority of the commonwealth, which is vested, not in
the king singly, but in the king, lords, and commons
jointly.* To enable him to govern his people with
wisdom and discretion, the king would summon to his
councils ' the most considerable persons in England,
the persons he most wanted to advise him, and the
persons whose tempers he was most anxious to ascer-
tain.' a

In process of time the character of the aula regia
underwent considerable modification. Each individual
officer of the court had his own particular duties assigned
to him. All business brought before the court would
naturally be referred by the king to the functionary
specially charged with the same. Thus, the marshal or
constable, assisted probably by other members of the
court, attended to military matters ; the chamberlain to
financial concerns ; the chancellor to questions affecting
the royal grants. Hence arose, by degrees, the separate
institution of curia regis, under Henry II. as an off-
shoot from the larger body into a distinct judicial
tribunal, which is the original of the present Court of
Queen's Bench, y and the subsequent development, at a
later period, of other courts of law and equity.

The first establishment of the law-courts, as distinct A . D>
tribunals, took place, however, in the reign of King John.
But it is worthy of notice that, notwithstanding the Law-
formation of separate courts for the administration of courts
justice, the king's council continued to exercise judicial
authority. To be the source and dispenser of justice,
and to supply the defects and moderate the judgments
of inferior courts, is an ancient prerogative of the crown, w
This prerogative was ordinarily exercised through

1 Allen, Royal Prerogative, p. 159 ; Richard I. edited by Stubbs, v. 2

First Lords' Report, Lords' Pap. pp. 71-80; and see Stubbs. Const-

1829, v. 10, p. 22. Hist, v. 1, p. 465.

u Bagehot, Eng. Const, p. 304. w See Palgrave, Eng. Common-

v Chron. of Reigns of Hen. II. and wealth, v. 1, p. 283.



64 COUNCILS UNDER PREROGATIVE GOVERNMENT.

judges, in accordance with established precedent ; but
it was still regarded as within the power of the king to
try suits, either by his own authority, or through the
officers of his council.*

A.D. 1272. With the accession of Edward I. still more important
changes commenced. The contemporaries of the Con-
queror and his immediate descendants had been accus-
tomed to the exercise of justice by the king and his great
officers, after a rude and informal fashion. Meanwhile,
the ordinary councils of King John and of Henry III.
were largely influenced by the growing power of the
barons, which operated as a restraint upon the arbitrary
power of the sovereign. But when Edward I. assumed
the throne, a better understanding began to prevail be-
tween the monarch and his advisers. 7 The rise of the
law-courts out of the curia regis begat, in the people
generally, a desire for more orderly government. Those
who contrasted the regular administration of justice
with the irresponsible and uncertain procedure before
the king's council, longed for something more in accord-
ance with their ancient Saxon liberties. 2 For the func-
Ordinary tions of the ordinary council at this time seem to have
council, been coextensive with the functions of the crown. Its
consent appears to have been deemed necessary to every
important act of the king in the exercise of his legis-
lative as well as of his executive powers. It ' was
evidently then considered as a very important part of
the government, responsible to the king and the country
for the acts done under its sanction ; and the people
often took great interest in its proper formation, of
which there are striking instances in the reigns of Henry
III. and Edward II.' a

Contemporaneously with these events, the ' great



* Dicey, p. 8. First Lords' Report, Lords' Pap.

* Palgrave, King's Council, p. 19 ; 1829, v. 10, p. 451 ; Hearn, Govt. of
Stubbs, c. xv. Eng. p. 273.

* Dicey, p. 11.



AFTER THE CONQUEST. 66

council' was steadily undergoing transformation, and Great
assuming definite shape as a legislative body, with ac- counci1 -
knowledged rights and privileges. Formerly, as we
have seen, the great council did not differ very materi-
ally from the smaller and more confidential assembly.
The functions of both were chiefly administrative. The
councils of William I. and his immediate successors, so
far as existing records show, were principally occupied
with matters of executive government such as the
grant of local charters, and the settlement of titles to
land. b The king could do nearly everything in his
' ordinary council ' that was lawful for the great council
to effect, except impose taxes. William the Conqueror,
in ascending the throne of England, had expressly re-
nounced all right to tax the nation without the consent
of the commune concilium regni ; and had promised to
govern by the old laws, except as they might be altered
expressly for the general good. It is true that he had not
been faithful to his word. The larger council was very
rarely convened . d But every formal concession on the
part of the crown contributed somewhat to the growth
and establishment of the great national council upon
a firmer basis. And the continual and ever-increasing
necessities of the state compelled the Norman sovereigns
to yield, however reluctantly, new charters, with ex-
tended privileges, to their powerful but insubordinate
nobility. Thus the lawless barons won for a down-
trodden and spiritless people precious franchises, that in
due time should elevate the national character, and * so
balance the forces existing in the state as to give to each
its opportunity of legitimate development.' e

The sagacious policy of Henry II., during his long A.D. 1155.
and eventful reign, did much to prepare the way for



b Cox, Ant. Parly. Elecs. p. 61. admirable Preface to the Chronicle

c Taylor, Book of Eights, p. 9. of Benedict of Peterborough (Rolls

d Stubbs, v. 1, pp. 358, 369. Chronicles, published in 1867), v. 2,

e Professor Stubbs's learned and p. xxxvii.

VOL. I. F



66 COUNCILS UNDER PEEROGATIVE GOVERNMENT.

these changes in the framework of English government.
The king Though bent upon consolidating the kingly power, Henry
council. !! when not absent from the realm, took frequent oc-
casion to convene the old national assembly, and to ask
the counsel of his constitutional advisers upon every pos-
sible subject. In fact, many matters were freely discussed
at these councils which would be deemed unsuitable for
the consideration of Parliament at the present day. But
the advice sought for and received, in conformity with
ancient usage, did not debar the sovereign from the
right to act as his own judgment might dictate upon
the particular question/

From the grant of Magna Carta by King John, con-
June 15, firmed and supplemented by similar concessions obtained
from later monarch s, may be dated the rise of our re-
presentative system/ the recognition of the House of
Commons as a separate estate of the realm, and the
establishment upon a sure foundation of our national
liberties,

Rise of The precise period when the representative system

sentatlve" f England originated, and the circumstances that gave
system. ft birth, are points which, notwithstanding the laborious
investigations of constitutional writers, are still involved
in great obscurity. The learned authors of the report
of the Lords' Committee, however, arrived at the follow-
ing conclusions upon this subject. They are of opinion
that from the Conquest until the reign of John, prelates,
earls, and barons (who constituted the three estates of
the realm) h generally formed, under the king, the legis-
lative power, for all purposes except the imposition of
taxes ; although the advice of an inferior class in the
community, or of particular individuals not of the privi-
leged orders, would be occasionally asked by the king,
under exceptional circumstances, as for the purpose of



f Stubbs, Const. Hist. v. 1, p. 570. Freeman, in Int. Rev. v. 3, p. 737 ;
Ib., v. 1, pp. 530-543, 622. Church Quar. Key. v. 4, p, 438.

h Ib. v. 2, pp. 108-204. And see



AFTER THE CONQUEST. 67

giving validity to the grant of an extraordinary aid to origin of
the crown. But it cannot be shown that, at this time, tation en
any commoners, elected by the people, or otherwise,
were called to the great councils, or Parliaments, as
members thereof. 1 That the great council of the realm
summoned by John, at St. Albans in 1213, included
certain persons who were summoned thereto by virtue
of their holding lands in chief of the crown. That some



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