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sionally granted in the charters of Richard, and commonly in
those of John, which seem to recognize in the borough a modified
corporate character but little short of the later idea of incorpora-
tion. The charter of John to Dunwich is especially full, be-



The Origin of Parliament 131

stowing the character of a free borough, enumerating the rights,
such as sac and soc, in which the burghers enter into the posses-
sion of the status before belonging to the lord of the franchise;
the ferm of their town; immunity from all jurisdiction except
that of the king's justices; the right to appear before the justices,
if summoned, by representation of twelve lawful men, and of
being assessed in case of an amercement by a mixed jury, half
named out of their own body. The privileges of the towns ad-
vanced very little farther than this during the thirteenth century;
but at the beginning of it the principle of representation and elec-
tion was thus applied to them.

7. Origin of Borough Representation in Parliament

No idea of summoning the towns to appear before the king by
their representatives can be traced higher than the reign of John.
Before and after this the richer tenants in burgage may have
occasionally attended the Royal Councils with the other freeholders.
They would, however, have no representative character whatever ;
nor is there any trace of their magistrates, to whom such a charac-
ter would belong, being summoned to Parliament, as they were
to the States General in France by Philip the Fair. The first
notice of a united representation occurs in 1213, when John sum-
moned the representatives of the demesne lands of the crown to
estimate the compensation to be paid to the plundered bishops.
By a writ to the sherifi%J:hey are directed to send to S. Albans
four men and the reeve from every township in demesne. In this
may be distinctly traced a connection with the county court rep-
resentation of earlier and later times. The assembly so con-
stituted met, and is dignified by Matthew Paris with the title of
a council, the archbishop, bishops, and magnates being present
at it. It is indeed the assembly to which, through the justiciar,
John proposed the restoration of the laws of Henry I.

From this date, however, to the Parliament of Simon de Mont-
fort, we find no further traces ; nor can this case be taken as more
than pointing the way to the later system. The taxation was still
a matter of arrangement with the officers of the Exchequer, and
for no other purpose were the towns likely to be consulted. The
summons of Simon de Montfort was directed to the citizens and
burghers of the several cities and boroughs, each of which was to
send two representatives. After the year 1265 there is again a
long blank ; for although in several places the burghers are spoken



132 English Historians



of as joining in grants of money at the king's request, it cannot
be shown that their representatives were convoked for the pur-
pose before the year 1295. The National Councils of 1273 a "d
1283, and the Parliament of Shrewsbury, contained representatives
of the towns, but they are not allowed by constitutional lawyers
the full name of Parliaments; nor is it certain whether the repre-
sentatives attended as representing an estate or a part of one, or
merely for the purpose of informing the king and magnates. In
1 294 the towns were asked for their contributions by distinct com-
missions; in 1295 they were summoned regularly to Parliament;
and although the series of writs is not so complete in the case of
the towns as in that of the counties, their right was then recognized,
their presence was seen to be indispensable, and the representation
has been continuous, or nearly continuous, ever since.

The great difference between the representation of the counties
and that of the boroughs is this, that it was in the power of the
crown or its advisers to increase or diminish the number of bor-
oughs represented a power based on the doctrine that their
privilege was the gift of the crown, and their status historically that
of royal demesne. But their association with the knights of the
shire, whose numbers could not be altered, and whose possession
of their right sprang from the more ancient part of the constitu-
tion, prevented the third estate from falling into the condition
into which the corresponding body fell in Spain, where the custom
of summoning towns was adopted earlier; and in France, where
it was possibly imitated by Philip the Fair from the practice of
Edward I.

8. Methods of Summoning Parliament

The status of the Parliament was constituted by the writs of
summons, addressed to the barons individually, and to the sheriffs
for the representation of the third estate. In the latter case both
towns and counties chose their representatives in the shire-moot.
Where the particular form of writ was not observed and both
for military levies of the vassals and for great councils a distinct
form was in use the Assembly, although it might contain every
element of a Parliament, was not regarded as one. The obscurity
of our knowledge on this point, caused by the loss of the ancient
writs, occasions the difficulty that exists about the Assemblies of
the reign of Henry III and of the early years of Edward I, during
which many councils were held which contained certainly knights



The Origin of Parliament 133

of the shire, and possibly deputies from the towns, but which are
called Great Councils rather than Parliaments, for this technical
reason, either they contained other ingredients besides the regu-
lar ones of Parliament, or they did not contain all the ingredients
of Parliament ; or the towns were summoned otherwise than
through the sheriffs ; or the number of representatives varied ; or
the selection of the boroughs was irregular; or the purpose speci-
fied in the writ was other than parliamentary.

Such councils were occasionally held in the succeeding reigns,
and exercised many of the powers of Parliament; but taxes im-
posed by them, and laws enacted by their authority, were regarded
as of questionable validity, and sometimes had to be formally
reenacted. These councils were, however, a part of the process
by which the institution of Parliaments ripened. The regular
tribunal of later date, to which the same name of Great Council
is given, contained the lords spiritual and temporal, the judges of
the courts, and the other members of the king's ordinary council.
For judicial purposes it exercised a right which Parliament as such
had not, and which has descended from it to the House of Lords
only. It also advised the crown in all matters of government,
although any attempt at legislation was watched very jealously
by the commons.

9. Combination of Election and Representation

The combination of the principle of election with that of rep-
resentation has been illustrated by what precedes. The idea of
election was very ancient in the nation, and had been theoretically
maintained in both the highest and lowest regions of the polity:
the kings and prelates were supposed to be elected; the magis-
trates of the towns, the judicial officers of the counties and forests,
were really so from the beginning of the thirteenth century, if not
before. In this, as in every other constitutional point, the free-
dom claimed and often secured by the clergy served to maintain
the recollection or idea of a right. In the reign of Edward I the
lawyers represented it as an ancient Teutonic right that the
ealdorman, the heretoga, and the sheriff were elected officers.
The election of sheriff was claimed for the counties during the par-
liamentary struggle which produced the Provisions of Oxford, and
was secured to the freeholders by the articuli super cartas in
1300; but the privilege was withdrawn in the next reign. The
two principles of election and representation have never been



IJ4 English Historians

divided in England since the reign of Edward I, although the
variety of franchises and disputes on the right of voting for mem-
bers of Parliament are for many centuries bewildering in the ex-
treme. The towns, however close the elective franchise, have
never been, as in France, represented by their magistrates as such.

10. Powers of Parliament

Of the four normal powers of a National Assembly, the judicial
has never been exercised by the Parliament as a parliament. The
House of Commons is not, either by itself or in conjunction with
the House^FCords/ a court of justice; the House of Lords has in-
herited its jurisdiction from the Great Council. Another power,
the political, or right of general deliberation on all national matters,
is too vague in its extent to be capable of being chronologically
defined; nor was it really vindicated by the Parliament until a
much later period than that on which we are now employed.
The two most important remain, the legislative and the laxative,
the tracing of whose history must complete our present survey.

ii. Development of the Legislative Power o/ Parliament

The ancient theory that the laws were made by the king and
Witan coordinately, if it be an ancient theory, has within historic
times been modified by the doctrine that the king enacted the
laws with the counsel and consent of the Witan. This is the most
ancient form existing in enactments, and is common to the early
laws of all the Teutonic races; it has, of course, always been still
more modified in usage by the varying power of the king and his
counsellors, and by the share that each was strong enough to vindi-
cate in the process. Until the reign of John the varieties of prac-
tice may be traced chiefly in the form taken by the law on its
enactment. The ancient laws are either drawn up as codes, like
Alfred's, or as amendments of customs: often we have only the
bare abstract of them, the substance that was orally transmitted
from one generation of Witan to another; where we have them in
integrity the counsel and consent of the Witan are specified. The
laws of the Norman kings are put in the form of charters; the king
in his sovereign capacity grants and confirms liberties and free
customs to his people, but with the counsel and consent of his
barons and faithful.

Henry II issued most of his enactments as edicts or assizes.



The Origin of Parliament 135

with a full rehearsal of the counsel and consent of his archbishops,
bishops, abbots, priors, earls, barons, knights, and freeholders.
The compact of John with the barons has the form of a charter ;
but, as already stated, is really a treaty based on articles proposed
to him, and containing additional articles to secure execution.
From the time of John the forms vary, and the reign of Henry III
contains statutes of every shape, the charter, the assize, the
articles proposed and accepted, and the special form of provisions,
which are analogous to the canons of ecclesiastical councils.
From the reign of Edward I the forms are those of statutes and
ordinances, differing in some ascertained respects, the former
formally accepted in the Parliaments as laws of perpetual obliga-
tion, and enrolled; the latter proceeding from the king and his
council rather than from the king and Parliament, being more
temporary in character, and not enrolled among the statutes. All
alike express the counsel and consent with which the king fortifies
his own enacting power ; but several of the early statutes of Edward
are worded as if that enacting power resided in the king and his
ordinary council; and it is not clear whether this assumption is
based on the doctrine of the scientific jurists who were addicted
to the civil law, or on imitation of the practice of the French kings
just then made illustrious by the Establishments of St. Lewis.

The actual force of the expression "counsel and consent,"
which is preserved during so long a period and under such various
developments of the royal power, can only be estimated approxi-
mately, according to the occasion or the needs or the character
of the sovereign who acknowledges it. It stands, for at least a
century after the Conquest, as the record of a right rather than the
expression of a fact. Under Henry II and his descendants, by
whom a large share of power was actually vested in the ministers
and judges, the facility of consultation was much increased, but
it remains an obscure point, whether consent could be withheld
as well as bestowed, and whether it was not generally taken for
granted.

From the reign of Henry III it was probably a reality, and from
that of Edward I downwards the form has a typical force, and
the variations later introduced into it have a greal deal of meaning.
After the permanent incorporation of the commons, from 1318
downwards, the form is : by the assent of the prelates, earls, barons,
and the commonalty of the realm. From the first year of Edward
III the share of the commons is frequently expressed as petition,
by the assent of the prelates, earls, and barons, and at the request



136 English Historians

of the commons; under Richard II the assent is occasionally
expressed as simply that of the lords and commons. Henry IV
enacts with the advice and assent of the lords at the request of
the commons. In the 23rd of Henry VI the addition by author-
ity of Parliament first occurs; and from the ist of Henry VII the
mention of petition is dropped, and the regular form becomes
the advice and assent, or consent, of the lords spiritual and tem-
poral and commons in Parliament assembled, and by authority
of the same. These forms, certainly, are not uniformly observed ;
but the origin of the changes may be exactly traced and will be
found to synchronize with the later changes in the balance of
power between the several estates and the sovereign.

The further question, Were the estates on an equality in respect
of legislation ? may be thus briefly answered. The claim of the
clergy and commons to a voice was not admitted so early in legis-
lation as in the case of taxation : once admitted, the power of the
commons very quickly eliminated all direct interference on the
part of the clergy. Down to the end of the reign of Edward I
it can hardly be said that the right of counsel was extended to the
commons at all ; it is in the next reign that their power of initiation
by way of petition is first recognized. As late as the i8th of
Edward I, the statute quia emptores was passed by the king and
barons, before the day for which the commons was summoned.
As to the clergy, there is no doubt either that they exercised the
right of petition or that the king occasionally made a statute at
their request, with the consent of the lords, and without reference
to the commons ; but acts so sanctioned were not regarded by the
lawyers as of full authority, and are relegated, perhaps rightly,
to the class of ordinances. Possibly the royal theory was that the
right of petition belonged to both clergy and commons, whilst
the counsel and consent of the lords only was indispensable. It
was not until the i5th of Edward II that the voice of Parliament,
when revoking the acts of the ordainers, distinctly enunciated the
principle that all matters to be established for the estate of the king
and people "shall be treated, accorded, and established in Par-
liaments by the king and by the assent of the prelates, earls, barons,
and commonalty of the realm, according as it hath been hitherto
accustomed."

The growth of the right of the commons may be traced in the
forms of the writs: in those of John, the knights of the shire are
summoned simply ad loquendum; those of Simon de Montfort
describe them as tractaturi el consilium impcnsuri; ad tractandum



The Origin of Parliament 137

as well as ad consulendum et consentiendum being the form of sum-
mons usual in the case of a Great Council. Edward I, in 1283, sum-
mons the representatives of the towns ad audiendum et faciendum;
in 1294 he summons the knights of the shire ad consulendum et
consentiendum, pro se et communitate ilia, Us qu<z comites, barones,
et proceres pmdicti ordinaverint, with which agrees the fact that,
in 1290, they were not .assembled until the legislative part of the
work of the Parliament had been transacted. From the year 1295,
however, the form is ad faciendum; under Edward II it be-
comes ad consentiendum et faciendum, to assent and enact.
From this time, then, the commons were admitted to a share of
the character of the sapientes, which in this respect the bishops
and barons had engrossed since the Conquest, and the king was
enabled to state with truth, as Edward I did to the pope, that the
custom of England was, that in business affecting the state of the
kingdom the counsel of all whom the matter touched should be
required. The corresponding variations in the pramunientes
clause summoning the clergy are: in 1295, ad tractandum, ordi-
nandum, et faciendum; in 1299, ad faciendum et consentiendum;
from 1381, only ad consentiendum, a function adequately dis-
charged by absence.

12. Connection between Taxation and Representation

The share of the commons in taxation takes precedence of their
share in legislation. The power of voting money was more neces-
sary than that of giving counsel. Of this power, as it existed up
to the date of Magna Carta, enough has been said. The witen-
agemot and its successor, the royal council of barons, could impose
the old national taxes ; the ordinary feudal exactions were matters
of common law and custom, and the amount of them was limited
by usage. But the extraordinary aids which Henry II and his
sons substituted for the Danegeld, and the taxes on the demesne
lands of the crown, were arbitrary in amount and incidence; the
former clearly requiring, and the latter, on all moral grounds, not
less demanding, an act of consent on the part of the payers. This
right was early recognized; even John, as we have seen, asked his
barons sometimes for grants, and treated with the demesne lands
and towns through the Exchequer, with the clergy through the
bishops and archdeacons.

Magna Carta enunciates the principle that the payers shall be
called to the common "council to vote the aids which had been



138 English Historians

previously negotiated separately; but the clause was never con firmed
by Henry III, nor was it applicable to the talliage of demesne.
It is as the towns begin to increase, and at the same time taxation
ceases to be based solely on land and begins to affect personal as
well as real property, that the difficulties of the king and the hard-
ships of the estates liable to talliage become important. The
steps by which the king was compelled to give up the right of taking
money without a parliamentary grant, are the same as those which
led to the confirmation of the charters by Edward I. It was virtu-
ally surrendered in the clause then conceded in addition to the
charter, which is commonly known under the form of the articles,
de tallagio non concedendo. And this completed the laxative
powers of Parliament. The further steps of development, the
determination of the different proportions in which the various
branches of the three estates voted their supplies, and the final
engrossing of the taxing power by the House of Commons, the
struggles by which the grants were made to depend on the redress
of grievances, and the determination of the disposal of supplies
assumed by the Parliament, belong to later history.

We have thus brought our sketch of constitutional history to
the point of time at which the nation may be regarded as reaching
its full stature. It has not yet learned its strength, nor accustomed
itself to economize its power. To trace the process by which it
learned the full strength of its organism, by which it learned
to use its powers and forces with discrimination and effect J" to
act easily, effectually, and economically; or, to use another meta-
phor, to trace the gradual wear of the various parts of the machin-
ery, until all roughness was smoothed, and all that was superfluous,
entangling, and confusing was got rid of, and the balance of forces
adjusted, and action made manageable and intelligible, and the
power of adaptation to change of circumstances fully realized,
is the story of later politics, of a process that is still going on, and
must go on as the age advances, and men are educated into wider
views of government, national unity, and political responsibility.
We stop, however, with Edward I, because the machinery is now
completed, the people are at fulfgrowth. The system is raw and
untrained and awkward, but it is complete. The attaining of this
point is to be attributed to the defining genius, the political wisdom,
and the honesty of Edward I, building on the immemorial foun-
dation of national custom ; fitting together all that Henry I had
planned, Henry II had organized, and the heroes of the thirteenth
century had inspired with fresh life and energy.



The Origin of Parliament 139



BIBLIOGRAPHICAL NOTE

Baldwin, Early Records oj the King's Council, in the American Historical
Review, October, 1905. Gneist, History of the English Constitution, chaps,
xxiv-xxv. Hearn, The Government oj England, chaps, xvi-xviii. Pollock and
Maitland, History of English Law, Vol. I, Bk. II, chap, iii, for the organiza-
tion of the county and borough. Pike, Constitutional History oj the House
of Lords. Stubbs, Lectures on Early English History, chaps, xvii and xviii.
For the illustrative documents consult the Pennsylvania Translations and
Reprints, Vol. I, no. 6.



CHAPTER VH

GROWTH OF PARLIAMENTARY POWERS

IT was a long time after the Model Parliament of Edward I
before Parliament took on a definite form of two houses, each with
its settled customs and rules of procedure. A general account of
this further development will be found in almost any good text-
book, especially in Mr. Medley's excellent manual, English Con-
stitutional History, chapter iv. While tracing the evolution of
the forms of Parliament, the student must also observe an equally
important process, that is, the development of the powers of the
respective houses, not in an abstract fashion, but always in relation
to concrete contemporary events. Originating as a feudal and
taxing body, Parliament, in the struggle with the kings, attempted
to control not only the amount and form of taxes, but also their
expenditure. Furthermore, Parliament contended for the right to
make new laws and restrain the king from arbitrary action in this
sphere also. The methods by which these various claims to power
were made effective are elaborately discussed by Dr. Stubbs in
the seventeenth chapter of his Constitutional History, from which
only a few passages can be given here.

i. Parliamentary Control 0} Royal Ministers*

The idea of controlling expenditure and securing the redress
of all administrative abuses by maintaining a hold upon the king's
ministers, and even upon the king himself, appears in our history,
as soon as the nation begins to assert its constitutional rights, in
the executory clauses of the Great Charter. Three methods of
attaining the end proposed recommended themselves at different

1 Stubbs, Constitutional History of England, Vol. II, chap. xvii. By per-
mission of the Delegates of the Clarendon Press, Oxford.

140



Growth of Parliamentary Powers 141

times: these are analogous, in the case of the ministers, to the
different methods by which, under various systems, the nation has
attempted to restrain the exercise of royal power; the rule of
election, the tie of the coronation oath, and the threats of deposi-
tion ; and they are liable to the same abuses.

The scheme of limiting the irresponsible power of the king by
the election of the great officers of state in Parliament has already
been referred to as one of the results of the long minority of Henry
III. It was in close analogy with the practice of election to bishop-
rics and abbacies, and to the theory of royal election itself. When,
in 1244 and several succeeding years, the barons claimed the right
of choosing the justiciar, chancellor, and treasurer, they probably
intended that the most capable man should be chosen, and that
his appointment should be, if not for life, at least revocable only
by the consent of the nation in Parliament. The king saw more
clearly perhaps than the barons that his power thus limited would
be a burden rather than a dignity, and that no king worthy of the
name could consent to be deprived of all freedom of action. Henry
III pertinaciously resisted the proposal, and it was never even
made to Edward I, although in one instance he was requested to



Online LibraryCharles Austin BeardAn introduction to the English historians → online text (page 14 of 67)