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of these individuals gave their personal attendance,
others possibly appeared by representation, inasmuch as
the lesser barons, being under no peculiar obligation of
personal attendance, would naturally incline to select
certain of their richest and most influential brethren to
represent them.' That during the reign of Henry III.,
important changes probably took place in the constitu-
tion of the great council, and most likely, as the result
of circumstances, without the intervention of any ex-
press law on the subject. That in the forty-ninth year
of Henry III., through the instrumentality of Simon de
Montfort, Earl of Leicester, a great council was con- January
vened, which consisted not only of persons who were ' "
summoned personally, by special writ, according to the
charter of John, but of persons who were required to
attend, not merely by general summons, according to
the same charter, but in consequence of writs directed
to the sheriffs of certain counties, and to certain cities .
and boroughs, commanding the recipients to cause
' knights, citizens,- and burgesses ' to be chosen as repre-
sentatives of such counties, cities, and boroughs respec-
tively, who should attend the king's council, together
with those who had been personally summoned thereto.*

Historians and antiquarians are agreed in referring to the year Earliest
1265, the earliest Parliament of lords, knights, citizens, and bur- represen-
tation.



4 See Parry's Parlts. Introd. pp. i See Stubbs, v. 1, pp. 527, 564.
xii.-xvi. ; Cox, Ant. Parly. Elecs. k See ib. \. 2, pp. 92, 221 ;
pp. 64-70 ; Stubbs, v. 1, p. 368. Simon de Montfort, the creator oi'

F2



68 COUNCILS UNDER PREROGATIVE GOVERNMENT.

gesses. Before that time, indeed, there had been held many great
councils of the nation, but none, so far as extant records show, in which
the counties and boroughs of England were represented together. 1

Early That the first clear evidence remaining of any subsequent

legislative . . . . , - ,*'..,*.

assem- convention of a legislative assembly, under similar cir-
cumstances, was in the summoning of ' a great and

A.D. 1295. model Parliament ' in the twenty-third year of Edward
I. ; m while the constitution of the intervening assemblies
is wrapped in uncertainty. That from thence until the

A.D. 1322. fifteenth year of Edward II., the legislative assemblies
of England appear to have been generally, but not in-
variably, composed nearly in the manner in which the
assembly in the twenty-third of Edward I. was con-
stituted. That the declaratory statute of the fifteenth
of Edward II. gave the sanction of Parliament to the
constitution of the legislature as it then stood, under
which the legislative power was declared to be in the
king, ' by the assent of the prelates, earls and barons,
and commonalty of the realm, according as it had been
heretofore accustomed.' And that, after this period,
the constitution of the legislative assemblies of England
had nearly approached the form which it now presents."
Whilst the appropriate functions of the several orders
and estates of the realm were thus being gradually de-
veloped and matured, the divers elements of which the

A..D. 1272 - if

1307. nation itsell was composed were uniting together. Jbrom
the grant of Magna Carta by John the nation became
one, and gradually began to realise its unity. The
work of amalgamation, consolidation, and of continuous
growth, in progress during the century which succeeded
the Norman Conquest, was completed under successive



the II. of Commons, by R. Pauli : First Lords' Report, Lords' Pap.

translated (and revised by the author) 1829, v. 10, pp. 154, 254, 389-391,

by U. M. Goodwin, London, 1876; 473. And tee Freeman's Growth of

Prothero's Life of Simon de Montfort, Eng. Const, c. ii. ; Cox, Ant. Parl.

London, 1877. Elecs. pp. 68-85 and 96; Syme,

1 Cox, Antient Parl. Elecs. p. 60. Rep. Govt. c. i.

m Stubbs, v. 2, pp. 128, 223, 253.



ORIGIN OF PARLIAMENTS. 69

monarchs, from John to Edward I. In the reign of
Edward L, the protracted struggle between Englishmen,
of whatever race descended, and the foreigners who
had devoured their substance and overthrown their C onsti



liberties, finally came to an end. By the efforts of this
prudent monarch, the English and the Normans were
joined together in a common bond of mutual helpfulness,
ancient freedom was revived, and the national institu-
tions began to assume ' those constitutional forms which,
with mere changes of detail, they have preserved unin-
terruptedly ever since.' p

The century that followed Magna Carta was like-
wise a period of growth and development, wherein the
three estates became conscious of their distinct identity,
and entered upon their separate and appropriate spheres
of labour. q

It was during the reign of Edward I. that the barons,
who had hitherto monopolised the ear of the sovereign,
and controlled his policy, realised the existence of a
new power which it was needful for them to conciliate.
The citizens and burgesses, who had accumulated wealth The
by honest industry, and who were able and willing to
contribute to the necessities of the state, were altogether recognise

the rights

excluded from the national councils. Whether or not of the
this was esteemed a grievance, at this period, it is hard Bur * es3es -
to conjecture : this much at any rate is certain, that they
stoutly objected to pay any taxes that were levied upon
them without their consent. In 1297, after a fruitless
endeavour, on the part of the king, to exact the levy of
a rate on the ' communaute ' of the kingdom, which
they had not agreed to pay, several of the principal
peers interposed on their behalf, and obtained a guaran-
tee from the king that no such illegal taxation should
be again attempted. Shortly afterwards, the king coii-



Stubbs, Const. Hist. c. xiii., xiv., Stubbs, c. xv.
xv. q Stubbs, v. 1, p. 687.

p Freeman, v. 1, pp. 6, 122 ; and



70 COUNCILS UNDER PREROGATIVE GOVERNMENT.

vened a parliament, wherein this fundamental principle
of English liberty was solemnly ratified, by the statute
De Tallagio nan concedendo, which provides that ' no
talliage or aid shall by us or our heirs be imposed or
levied in our kingdom without the will and assent of
the archbishops, bishops, barons, milites, burgesses, and
the other freemen of our realm.' r

And here we may notice a practice which prevailed in the early
periods of English constitutional history, and which is followed
almost universally in other countries where parliamentary govern-
Payment ment is now established, namely, the payment of wages to repre-
of mem- sentatives. Peers invariably attended parliaments at their own
expense, that being one of the services they were obliged to render
for the baronies they held of the crown. But as soon as the smaller
tenants of the king in capite, or freeholders, were permitted to
appear by representation, they were subjected to pay the expenses or
wages of their representatives. This custom of representatives
receiving, and their constituents paying, wages began from a prin-
ciple of equity, without any positive law ; and so continued from
49 Henry III. (A.D. 1265) to 18 Richard II. '(A.D. 1394), when
a law was passed to regulate and enforce it. The practice prevailed,
generally, until the reign of Charles I., and in certain parts of the
kingdom to a much later period, when it gradually fell into desue-
tude. 8 On April 5, 1870, a private member of the House of
Commons moved for leave to bring in a Bill ' to restore the ancient
constitutional custom of payment of members.' After describing
the origin and history of this custom in England, the mover pointed
out that while there is great diversity in respect to the amount and
mode of payment, the practice exists in every country possessing
free institutions, excepting Spain and England, and some of its de-
pendencies. The motion was opposed by the Prime Minister (Mr.
Gladstone) on public grounds. He also contended that the charge,
if necessary, should be defrayed according to ancient usage, out of
local rates, and not out of the Consolidated Fund. On division, the
motion was negatived by a very large majority.*



r Cox, Ant. Parl. Elec. pp. 71,77; tralia), upon the practice of paying or

Stubbs, v. 2, p. 142. compensating members of the legis-

' Henry's Hist, of Qt. Britain, 5th lature in other countries. (Victoria

ed. v. 10, p. 61 ; Hats. Free. v. 2, Assy. Pap. 1869, v. 3, Nos. 7, 18,20,

p. 78, n. 26.) Of the Australasian colonies New

1 Hans. D. v. 200, pp. 1334-1368. Zealand and Victoria are the only two

See Kept, of a Royal Commission ap- that pay their members, the former

pointed by Govt. of Victoria (Aus- by an honorarium of 2 10/. voted annu-



GROWTH OF PARLIAMENT. 71

Once they obtained an entrance into the great coun-
cil, the lesser orders speedily began to acquire influence
and authority. The growth of the power of the com-
mons is distinctly traceable in the records of the legis-
lative assembly under Edward II. In the preceding
reign, in conformity with the usages of an earlier period,
the functions of the commons were limited to a declara-
tion of the extent of the grants which they were em-
powered by their constituents to offer to the crown. A.D. 1307.
But in the time of Edward II. the right of the commons
to a share in the making of laws was formally acknow- Rising
ledged ; and by the latter par t of the reign of Edward III. , j^!
the power of the commons had so greatly increased mons.
that we find them strenuously resisting attempts to im-
pose inordinate taxation, and boldly remonstrating with
the king upon his choice of unworthy advisers. u

About this period there was a further development
of the power of the commons, in relation to the mode
of granting aids and supplies to the crown. In the
reigns of Edward L, II., and III,, it had been customary
for the lords, the clergy and the commons, severally
and separately, to determine the proportion of their
respective grants, on the principle that they each repre-
sented distinct and independent portions of the com-
munity. v

The three estates of the realm originally sat together in one
chamber. When they first began to sit apart is uncertain. No
doubt they often deliberated separately, and gave separate advice to
the king, long before a formal separation took place. w Their division
into two houses must have been accomplished at any rate not later
than 1341."

Nevertheless, it was obviously desirable that there



ally for each member, prior to 1884. Cox, Ant. Parl. Elecs. pp. 84, 93 t

In that year an Act was passed making v Hatsell, Prec. v. 3, p. 95.

permanent this payment. The latter w Hearn, Govt. of Eng. pp. 394-

by Act, 1880, but the Leg. Councilre- 407.

fused to accept payment for its mem- x Stubbs, v. 2, p. 377, n. ; v. 3,

bers. (The Colonies, Nov. 6, 1880, p. 430.

p. 3. Vide Act, 1883, No. 764.)



72 COUNCILS UNDER PREROGATIVE GOVERNMENT.

should be a mutual understanding between the several
estates on this subject, as neither would choose to be
subjected to a higher rate than the other. It was also
expedient that this agreement should be arrived at
before any communication upon the matter of supply
was made by the commons to the crown. This gave
rise to the practice of conferences between committees
of the lords and commons preliminary to the grant of
supply, upon which occasions each estate counted it an
advantage to obtain a knowledge of the intentions of
the other before disclosing their own/

A.D. 1407. In the ninth year of Henry IV. the commons com-
plained to the king of the lords, for having made known
to his majesty certain particulars in regard to a pro-
posed subsidy before it had been finally agreed upon
by both houses, a proceeding which they affirmed to be
' in prejudice and derogation of their liberties.' The
protest was successful. The king, with the assent of
the lords, made an ordinance declaring that ' the lords
on their part, and the commons on their part, shall not
make any report to the king of any grant by the com-
mons granted, and by the lords assented to, nor of the
communications of the said grant, before the lords and
commons be of one assent and accord ; and then in
manner and form as has been accustomed, that is, by the
mouth of the speaker of the commons.' This was an-
other triumph on behalf of the commons, which tended
to aggrandise their authority, especially with reference
to the grant of public money. 2

A.D. 1327. Up to the time of Edward III., it is not easy to
Functions define wherein the functions of the national assembly
ment rlia differed from those which appertained to the king's par-
ticular council. The judgments of the ordinary council
would undoubtedly derive additional weight and solem-



Cox, Ant. Parl. Elecs. p. 98. Parl. Hist. v. 1, pp. 110, 140, 163-171.
1 Cox, Ant. Parl. Elecs. p. 100.



GKOWTH OF PARLIAMENT. 73

nity from being delivered in parliament ; and the king
himself was probably more ready to receive petitions
for redress of grievances when surrounded by all his
councillors. The chief point of difference, however,
appears to have been, that after the commons were in-
corporated into the national assembly, a considerable
time elapsed before they were permitted to take part in
any act or proceeding which bore a judicial character.
But in the reign of Edward III, there are instances
wherein the commons claimed to participate in the
exercise of remedial justice ; a and before the decease
of that monarch, we find all the governmental institu-
tions of England namely, a king's council, a parliament
of two chambers (into which the ancient great baronial
council had gradually merged) > and courts of law in 1377.
distinct shape and harmonious exercise. b

The ' great councils ' continued for a time to be occasionally con-
vened even after their most important functions had devolved upon
Parliament. ' Some hundreds of years afterwards/ in 1640, Charles
I. sought to find a substitute for the Parliament, with which he had
hopelessly quarrelled, by reviving the long-disused baronial ' council.'
But the endeavour to resuscitate an obsolete tribunal served only to
widen the breach between the king and his people, and to precipitate
-his downfall.

By the end of the fourteenth century the House of
Commons had attained to its full share of political
power, in the recognition of its right to represent the
mass of the nation, and the vindication of its claim to
exercise the powers which in the preceding century had
been exclusively exercised by the baronage. d

King Edward's legislative assemblies, moreover, were
vigilant asserters of popular rights. They obtained from
their sovereign repeated confirmations of the Great



Stubbs, v. 2, p. 604. Hist, of Eng. v. 3, p. 438 ; Hearn,

b Palgrave, King's Council, pp. 22, Govt. of Eng. pp. 407, 46] .

64. Dicey, p. 13. First Lords' Re- d Stubbs, v. 2, pp. 306, 390, 401 ;

port, Lords' Pap. 1829, v. 10, p. 169. v. 3, pp. 256, 377.
' See Dicey, p. 13 ; Knight, Pop.



74



COUNCILS UNDER PREROGATIVE GOVERNMENT.



Great
consti-
tutional
epoch.



A.D. 1299-
1512.



Frequent
meetings
of Parlia-
ment.



Charter, and succeeded in establishing three essential
principles of government namely, the illegality of
raising money without consent of Parliament ; the ne-
cessity that both houses should concur in any alteration
of the law ; and the right of the commons to enquire
into abuses, and impeach the councillors of the crown
for acts of corruption. 6

The reign of Edward III. was, in fact, a great con-
stitutional epoch. Independently of the organic changes
in the composition of Parliament which characterised
that century, it was also remarkable for the frequent
holdings of the great national assembly, and for the
passing of a law which rendered it imperative upon
the king to meet his parliament ' every year once, and
more often if need be.' f As a rule, under the Planta-
genet sovereigns the parliaments were newly elected
every time they were convened, and not kept alive from
year to year by prorogations^

From the latter part of the reign of Edward I. until
the early part of the reign of Henry VIII., being a
period of 213 years, it was customary for the monarchs
of England to consult frequently with the great council
of the nation. A year would seldom elapse without a
parliament being convened, and sometimes two or three
meetings would take place within twelve months. It
has been ascertained that in the interval above men-
tioned, upwards of two hundred separate parliaments
were assembled. They usually sat for a period varying
from four to thirty days ; but, occasionally, the sessions
would be protracted for several months. h



e Taylor, Book of Rights, pp. 67,
68. Cox, Inst. Eng. Govt. p. 229.
Parl. Hist. v. 1, p. 141.

f 4 Edw. III. c. 14. confirmed by
36 Edw. III. c. 10.

Stubbs, v. 2, p. 613; v. 3, p. 380.
Smith, Parl. Rememb. (1865), p. 7.
The prorogation and reassembling of



the same Parliament appears to have
first occurred in the reign of Henry VI.
But it was not until the accession of
Henry VIII. that it became an habi-
tual practice. (Parry, Parlts. pp. 57-
59.)

h Parry, Parlts. of Eng. pp. 55,
59 ; Stubbs, v. 2, p. 612.



THE PEIVY COUNCIL. 75

And here we may notice, that it had long been cus- The Privy
tomary for the king's councillors, as confidential ser- i^pariia-
vants of the crown, to be present at every meeting of ment -
the ' Magnum Concilium,' or High Court of Parliament.
The select or (as it was afterwards designated) ' Privy
Council ' were uniformly required by the sovereign to
assist at the deliberations of the great council. But it
should be borne in mind that the Court of Parliament
of this age really signified the House of Lords, and that, /
in a judicial sense, the terms were and still are synony-
mous. 1 It was contended by Sir Matthew Hale that in
very ancient times, before the reign of Edward I., and
perhaps down to the middle of the reign of Edward III.
(by which period, at any rate, the Lords and Commons
had regularly formed themselves into separate legislative
chambers), the Privy Council had an essential right
not merely to advise, but also to vote, in the judicial
determinations of Parliament. 5 Eecent authorities, how-
ever, are of opinion that this is erroneous. The privy
councillors undoubtedly formed part of the great coun-
cil, or Court of Parliament, but it is most probable that
they merely ' gave reasons,' without voting as is still
done by the assistants in the House of Lords, when
required. It is evident, at any rate, that about the
time of Edward III. those who sat in Parliament by
virtue of their office as king's councillors, began to be
regarded in the light of assistants or advisers merely,
whilst the authoritative and judiciary power was exer-
cised by the House itself. k And Sir Matthew Hale
admits that, though ' they were assistants of such a
nature, quality, and weight, that their advice guided
matters judicial and judicial proceedings in the Lords'
House,' yet ' they had no voice in passing of laws,' but
only ' spake their judgments and gave their reasons ' in

1 Macqueen, Prac. of Lords and k Macqueen, p. 674; Palgrave,
Privy C. pp. 671, 680. King's Council, p. 64.

j Hale, Jurisdict. PI. of Lds. p. 85.



76



COUNCILS UNDER PREROGATIVE GOVERNMENT.



Growth of
the Privy
Council.



matters of judicial concern. 1 The Commons, mean-
while, having secured their own position as an integral
part of Parliament, and having acquired the right
of impeachment, laboured to prevent the council
from exercising any extraordinary jurisdiction, or
powers not distinctly warranted by law, when acting
independently of Parliament. This point they also
gained. 111

Gradually the connection which originally subsisted
between the Privy Council and the Court of Parliament,
i.e. the House of Lords in their judicial capacity, came
to be dissolved though not without leaving traces in
existing usage of the old relations and the Privy
Council began to assume a separate and independent
jurisdiction of its own. This change took place under
A.D. 1397. Richard II., when the council was entirely separated
from Parliament, and entered upon its appropriate func-
tions as a distinct tribunal. With the sanction of Par-
liament its separate duties were defined, and thence-
forward its authority was acknowledged without any
further opposition, save only when it attempted to in-
terfere in matters beyond its jurisdiction. 11 The council
continued to gain strength and influence until it attained
the climax of its powers under the Tudor princes, whose
policy was to increase the authority of the Privy Coun-
cil, and to govern as much as possible without the aid
of Parliaments. A notable instance of this is afforded
in the reign of Henry VIII., which lasted for nearly
forty years, during which period Parliament did not sit
in all for more than three years and a half ; and during
the first twenty years the duration of all its sessions
put together was less than a twelvemonth.

It will not fail to be observed that the presence, from
the very first, of the members of the king's Privy



Parlia-
ment
seldom
convened.



82.



1 Hale, Lords' Jurisdiction, p. 71. n Ib. pp. 78, 80, 84, 97. And see
m Palgrave, King's Council, pp. 69, post, p. 81.



Macqueen, pp. 675, 680.



THE PEIVY COUNCIL. 77

Council in the great council or Court of Parliament was
a foreshadowing of the more intimate relations which
were afterwards established between the ministers of the
crown and the legislature under parliamentary govern-
ment.

In the continuous growth of free institutions which Relations
so happily distinguishes the reigns of our English mon- tSUng
archs from the accession of Henry III., a remarkable andhis

. , . T , ,, , . < TTI -, -r-r ministers.

incident is recorded, ol the time 01 JbLdward II., which
manifests a decided recognition, in that early period, of
constitutional relations between the sovereign, his minis-
ters, and parliament. In 1316, the Earl of Lancaster, A - D - 1316 -
who had heretofore been a prominent leader of a power-
ful confederacy of discontented barons, was himself
invited by the king to become president of his council.
The earl agreed to accept office on certain conditions,
which being complied with by the king, he was duly in-
stalled in open Parliament ; and his oath, or protestation,
which embodied the stipulations which he had made,
was ordered to be entered upon the rolls of Parliament.
After reciting the terms of the appointment, it proceeds
as follows : ' So as at any time, if the king shall not do
according to his directions, and those of 'his council,
concerning the matters of his court and kingdom, after
such things have been shown him, and that he will
not be directed by the council of him, and others the
earl, without evil will, challenge, or discontent, may be
discharged from the council,' and that ' the business of
the realm ' shall not be done without the assent of the
members of the council ; and if the council ' shall advise
the king, or do other thing which shall not be for the
profit of him and his realm, then, at the next Parlia-
ment, by the advice of the king and his friends, they
shall be removed.' The entry on the roll concludes with
these emphatic words, which show that the order in the
present case was the general and acknowledged rule
under similar circumstances : ' And so it shall be, from



78 COUNCILS UNDER PEEROGATIVE GOVERNMENT.

Parliament to Parliament, as to them and every of them,
according to the faults found in them.' p

Nearly one hundred years later, in the reign of
Henry IV., we meet with a similar instance of the ac-
knowledgment of the right of a minister of state to
relinquish his office, without offence to the king, when
he found himself unable to continue to discharge the
same to the public welfare. It is thus noted by Sir
Harris Nicolas : ' In May 1406, the king having taken
into his consideration the numerous claims upon his
time and attention, in the affairs of the kingdom, ap-
pointed three bishops, six temporal peers, the chan-
cellor, the treasurer, the keeper of the privy seal, the
steward and chamberlain of his household, and three
other persons, members of his Privy Council, and com-
manded them to exert themselves as much as possible
in promoting the welfare, and in maintaining the laws
and statutes, of the realm. The king then directed that
all Bills indorsed by the chamberlain, and letters under



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