188 A Commune Concilium Regni has always existed. Witenagemot. Curia Its constitu- CHAPTER VII. ORIGIN OF PARLIAMENT. ENGLAND has never been without a National Assembly, a 'Commune Concilium Regni,' by whose 'counsel and consent' the work of government has been carried on. But, whilst retaining its corporate identity, the name, powers, and constitution of this assembly have varied from time to time. The nature and functions of the old English Witenagemot have been already sufficiently described.' After the Norman Conquest the Witan still continued to be summoned, as before, to give counsel and consent on the promulgation of a new law, or the imposition of a new tax; but owing alike to the infrequency of legislation under the Norman kings, and to the predominance of the Royal power, the legislative functions of the assembly must have been formal, rather than real. As the Feudal principle gradually acquired predominating influence in every department of the state, the Meeting of the Wise almost insensibly changed into the Curia Regis, the court of the King's feudal vassals. All immediate tenants of the Crown by military service, however small might be their holdings, had originally a personal right to be summoned to the Common Council of the Realm whenever the King wished to impose any extraordinary aid, and probably on other occasions also. The Bishops and principal abbots continued to be summoned without any intermission, though their ancient character of Witan appears to have become gradually merged in that of feudal barons. The Earls also, who were 'at all times and without exception indisputably noble,' never lost their right to attend. But as regards all other military tenants in capite, although Constitutionally members of the Commune Concilium, it is highly probable that the King early assumed the power of selecting the persons to whom writs of summons should be addressed.3 Thus the same indefiniteness and uncertainty which had characterised the constitution of the Witenagemots continued as a feature of the feudal Great Councils. With the exception of the famous Gemot of Salisbury in 1086, which was attended not only by the Witan but by all the landowners of the kingdom, whether tenants-in-chief or not, and the similar general muster of landowners held by Henry I. at Salisbury in 1116,' the complete assembly of all the tenants-in-chief can hardly ever have taken place. Still, the personal right always subsisted; and it was the infringement of this right, when Councils were summoned for the purpose of granting extraordinary aids which led to the provision in John's Magna Charta, by which the King promised on such occasions to summon all tenants in capite, the archbishops, bishops, abbots, earls, and majores barones individually, and the rest generally through the sheriff. This difference in the mode of summons-a difference which had been observed for at least half a century and probably from a still earlier period-is evidence of the inequality then existing among the tenants-in-chief. Though formally recognised by Magna Charta, the right of the inferior tenants-in-chief to attend the National Council must soon have become impracticable through the increase in their numbers (arising from the subdivision of tenures), their comparative poverty, and the personal inconvenience of attending at long distances from home. Thus the ancient National Assembly gradually The majores ceased to be anything more than an assembly of the greater barons,' and ultimately developed into a hereditary House of Lords, the Upper Hereditary House of the National Parliament. The hereditary character of the the House House of Lords-now long regarded as fixed and fundamentalaccrued slowly and undesignedly, as a consequence of the hereditary descent of the baronial fiefs, practically inalienable, in right of which summonses to the National Council were issued. But, in addition to the barons by tenure, the King had always the right, and, at least as early as the reign of Edward I. had acquired the habit, of summoning other persons who held nothing of the Crown by barony. It is certain that a summons was not at first regarded as conferring even a 1 Flor. Wigorn. s.a. 1116. Henry II. made the national council a different thing from what Henry I. had left it. . Its composition was a perfect feudal court: archbishops, bishops, abbots, priors, earls, barons, knights, and freeholders. That towards the end of his reign he found it necessary to limit the number of lower freeholders who attended the councils is very probable; the use of summonses, which prevailed from the first year of the reign, gave him the power of doing this. -Stubbs, Select Chart., Introduction, 22. In 1164, Archbishop Becket felt himself insulted by receiving a summons to the Great Council in Northampton, not by special writ, but through a common summons directed to the Sheriff of Kent. Will. Fitz Stephen [Rolls ed. iii. 51). The Lords' Committee (p. 314), speaking of the 15th of Edward III., say: 'Those who may have been deemed to have been in the reign of John distinguished as majores barones, by the honour of a personal writ of summons, or by the extent and influence of their property, from the other tenants-in-chief of the crown, were now clearly become. with the earls and the newly-created dignity of duke, a distinct body of men denominated peers of the land, and having distinct personal rights; while the other tenants-in-chief, whatsoever their rights may have been in the reign of John, sunk into the general mass.' barones. character of of Lords. Spiritual peers. Lay peer: ages for life. lasting personal right much less one that was hereditary; but by the time that the custom arose of creating baronies by letters patent (the first instance of which [in England] was the creation of Sir John Beauchamp of Holt as Lord Beauchamp of Kidderminster, in the 10th of Richard II.), the hereditary nature of the baronage, irrespective of tenure, may be regarded as the established rule. Still, the rule has never been without exception. The presence of the Bishops in the House of Lords is at once an exception to the principle of hereditary right, and a continuing witness of the times when such right had no existence. Down to the suppression of the monasteries by Henry VIII., in 1539, while the abbots and priors sat with the Bishops, the spiritual life-peers actually outnumbered the lords temporal; and even after the abbots and priors had been removed, the Bishops alone formed about one-third of the House of Lords. Independently, however, of the spiritual peers, several cases of the creation of lay peerages -Dukedoms and Earldoms-for life only occurred between the reigns of Richard II. and Henry VI., but from the latter date, for more than four hundred years, no instance is recorded of any man being admitted to a seat in the House of Lords as a peer for life. In 1856, with the object of improving the ancient Appellate jurisdiction of the Upper House, an attempt was made to re-introduce lifepeerages by means of the Royal prerogative. This was defeated, 1 Freeman, Growth of Eng. Const., 61; Hallam [M. A. iii. 125], quoting Prynne's 1st Register. p. 232, says: No less than 98 laymen were summoned once only to Parliament, none of their names occurring afterwards; and 50 others, two, three, or four times. Some were constantly summoned during their lives, none of whose posterity ever attained that honour.' For the obscure history of the early baronage, see generally Hallam, iii. 121, 234. Bishop Stubbs has briefly summed up the successive changes in the constitution of the baronage, the chronology of which is far from easy to ax. Originally including all barones-that is, all homagers holding directly of the Crown-the baronage was limited: (1) to all who possessed a united 'corpus or collection of knights' fees held under one title; (2) to those who, possessing such a barony, were summoned by special writ; (3) to those who, whether entitled by such tenure or not, had received a special summons; (4) and finally to those who had become by creation or prescription entitled hereditarily to receive such a summons.-Select Chart., Introductory Sketch, 37 Lord Redesdale, in the L'Isle peerage case, gave his opinion that from the 5th year of Richard II. a writ of summons, with a sufficient proof of having sat by virtue of it in the House of Lords, created a hereditary peerage.-Nicolas's Case of the Barony of L'Isle, p. 200. [The system of creation of Peers by Letters Patent was unknown in Scotland until after the accession of James VI. to the English throne, and was clearly copied from the English practice.-C] [Cf. L. O. Pike, Const. Hist. of House of Lords, p. 99, seq.; and Gneist, Adel und Ritterschaft in England, (Berlin, 1853).-ED.] 3 May, Constitutional History, i. 299. By the profuse creation of peers in recent times, the relative proportion of the Bishops in the House of Lords has been reduced from one-third to less than one-fifteenth. The cases are collected in the Report of the Committee of Privileges, 1856. however, by the successful resistance of the House of Lords. After an interval of twenty years, during which the Appellate jurisdiction was at one time actually abolished prospectively, as to England, by the [Appellate Jurisdiction Act (1876), 39 & 40 Vict. c. 59.—ED.] two Lords of Appeal in Ordinary were constituted by Act of Parliament, with the rank of baron for life and the right of sitting and voting during their tenure of office only." election and tion familiar As the ordinary tenant-in-chief became gradually merged in the Ideas of general mass of freeholders, his theoretical right of attending the representa Commune Concilium in person was exchanged for the practical right to the nation. of electing representatives, who in his name consented to the imposition of taxes. The ideas of election and representation, both The attemp: in 1856 to re-introduce life-peerages in the person of Sir James Parke, late one of the Barons of the Court of Exchequer, created Baron Wensleydale 'for and during the time of his natural life,' was resisted by the Lords, who referred the patent to a Committee of Privileges, and agreed, in accordance with the report of that Committee, that neither the letters patent, nor the letters patent with the usual writ of summons in pursuance thereof, can entitle the grantee to sit and vote in Parliament." In consequence of this decision a new patent was issued creating Lord Wensleydale a hereditary peer of the realm. The resolution of the Lords, remarks Sir Erskine May, has since been generally accepted as a sound exposition of constitutional law. Where institutions are founded upon ancient usage, it is a safe and wholesome doctrine that they shall not be changed, unless by the supreme legislative authority of Parliament.'-Const. Hist. i. 298. [The lifepeerages created by the "Appellate Jurisdiction Act," 39 & 40 Vict. cap. 59, form, having regard to their mode of creation, such an important innovation from the standpoint of constitutional history as to deserve more than a passing notice. By the Act before mentioned, power was given to appoint a third Lord of Appeal in ordinary upon the demise or retirement of two paid judges of the Judicial Committee of the Privy Council, and a fourth when the two remaining paid judges retired or resigned. "An old principle was recognised and a new principle introduced. The principle that the holder of a baro y for life (as in the case of Lor Hay) enjoyed the rank of Baron, and not the right of sitting and voting in Parliament, was, as it were, reasserted. The introduction of Lords with a right to be summoned, and to sit, and vote, not even for life, but only during the tenure of office, was quite new as applied to laymen, or was, at any rate without precedent since the days of earlier Chancellors." L. O. Pike, Const. Hist. House of Lords, p. 383. 1 The innovation thus made was still further extended by The Appellate Jurisdiction Act, (1887) 50 & 51 Vict. cap. 70; and the vital clause (2) runs thus: The sixth section of the Appellate Jurisdiction Act, 1876, shall be construed and take effect, as well in respect of any Lord of Appeal in Ordinary heretofore appointed under that Act, as of any such Lord hereafter appointed, so as to entitle any person so appointed to sit and vote as a member of the House of Lords during his lite as fully as if the words "during the time that he continues in his office as a Lord of Appeal in Ordinary, and no longer," had been omitted from the said section. The Lords of Appeal became now Lords of Parliament for life, with no descendible dignity attached. The question has often been put whether such a lord would for a criminal offence be triable by his peers. There seems no doubt that not being ennobled in blood he would not be triable. For a further discussion of the point, cf. post, p. 750; and on the whole question, vide L. O. Pike, Const. Hist. House of Lords, P. 383, fol.-ED.] 2 39 & 40 Vict. c. 59. First historical in separately and in combination, had been familiar to the nation, in its legal and fiscal system, long before they were applied to the constitution of the National Parliament. The English Kingship was always in theory, and to a great extent in practice, elective. The Bishops and Abbots were supposed to be elected by the clergy, of whom they were the representatives. In the local courts of the hundred and the shire the reeve and four men attended as representatives from each township; and the twelve assessors of the Sheriff represented the judicial opinion of the whole shire. Subsequently, in the system of recognition by jury, as established by Henry II., the principles of election and representation were successively applied to almost every description of business-fiscal, judicial, and administrative. In the four sworn knights summoned by the sheriff to nominate the recognitors of the Grand Assize we have, probably, the first germ of a county representation.1 The first historical instance of the extension to a National Council stance of the of the representative machinery which had long existed in the summons of Folkmoot of the Shire is afforded by the Council held at St. Alban's on August 4th, 1213, after John's submission to the Pope, and during his dispute with the Northern barons on the question of foreign St. Alban's, service. This assembly was attended not only by the Bishops and representatives to a National Council, 1213. Barons, but also by the representative reeve and four men from each township on the Royal demesne. The immediate business to be transacted was the assessment of the amount due by way of restitution to the Church; but several other matters of national importance appear to have been discussed by the assembly. The Justiciar, Geoffrey Fitz-Peter, submitted to the whole body the recent promise of good government made to Archbishop Langton by the King on receiving absolution at Winchester, about a fortnight previously; referred them to the laws of Henry I. as the standard of what that good government should be; and issued an edict commanding the sheriffs and other Royal officers, on penalty of life and limb, to cease from their illegal exactions.3 1 Stubbs, Select Chart., Introductory Sketch, 24; and see Palgrave, Eng. Commonwealth, ch. viii. 2 See supra, p. 88. Matt. Paris, p. 239, s.a. 1213. ["In crastino autem raisit rex litteras ad omnes vicecomites regni Angliæ, præcipiens ut de singulis domini corum suorum villis quatuor legales homines cum præposito apud Sanctum Albanum pride nonas Augusti facerent convenire. De damnis singulorum episcoporum et ablatis certitudinem inquireret, et quid singulis deberetur. Galfridus filius Petri et Episcopus Wintonensis cum Archiepiscopo et Episcopis et Magnatibus regni, ubi cunctis pace regis denunciata ex ejusdem regis parte firmiter præceptum est, quatenus leges Henrici avi sui ab omnibus in regno custodirentur, et omnes leges iniquæ penitus enervarentur."-ED.] |