sovereign, his powers exercised independently of Parliament were subject to the control of his powers acting in conjunction with Parliament. It followed from this theory that Parliament held a position in the state as important as the position held by the king. They occupied different positions, but positions of co-ordinate authority.

It was essentially a lawyer's theory, stated in a legal way, and pointed by legal illustrations. The objection which a royalist might fairly make to it was that, in effect, it left the -state with no sovereign at all, unless king and Parliament were in agreement; and that a theory of sovereignty was useless unless it provided for the case of a disagreement. The royalist theory, he would have said, was infinitely superior because it provided for the case of a disagreement. In such a case the king had the last word. On the other hand, we, who can look at the royalist theory in the light of subsequent history, may justly say that, though superior as a theory, it was merely academic, because it was in practice impossible of realisation. It is true that Whitelocke's theory was not workable unless and until Parliament had asserted its position as the predominant partner in the state; but the royalist theory was equally unworkable unless and until the king had proved himself to be definitely - stronger than Parliament. Neither theory was capable of realisation so long as king and Parliament stood over against one another as equal, co-ordinate, and opposed powers.

In the earlier years of the seventeenth century Parliament was not fully alive to the fact that, if it was to withstand the crown successfully, it must do something more than act on the defensive, and maintain its powers and privileges. It did not see that it must claim to be the predominant partner in the state. The eleven years of prerogative rule at length made this clear to its leaders; and the Long Parliament made this claim. It was a claim which the king refused to admit; and the result of this refusal was civil war. Parliament was then obliged to put forward a definite claim to be the sovereign power in the state; and, to support it, the privileges of Parliament were extended to an even greater extent than the king had extended his prerogative. Then came the execution of the king, and the various experiments in the manufacture of new constitutions, which mark the Commonwealth period. The Restoration brought back the old constitution with all its old uncertainty as to the whereabouts of the sovereign power. But the problem was one degree nearer solution on the lines marked out by Whitelocke, because it had become clear that Parliament was, if not the strongest power in the state, at least equally as strong as the king. It was clear

that it could not be defied as James I. and Charles I. had defied it. James II. attempted to defy it; and the Revolution definitely proved that it was the predominant partner. Whitelocke's theory of Parliamentary sovereignty therefore became the accepted theory of the constitution; and, in the eighteenth century, the growth of the conventions of the constitution made it a workable theory.

In this section we are concerned only with the earlier stages of this development of the theory of Parliamentary government. I shall deal with these earlier stages under the three following heads: (i) the Parliamentary opposition to the crown; (ii) the legislation of the Long Parliament; (iii) the Parliamentary claim to guide the policy of the state by controlling the appointment of the king's ministers.

(i) The Parliamentary oppposition to the crown.

3

We have seen that, in the sixteenth century, Elizabeth's Secretary of State-Sir Thomas Smith-had recognized that the crown in Parliament was the body in which "the most high and absolute power of the realme of Englande" resided.1 We have seen, too, that the English Parliament was the sole survivor of those representative assemblies, which had once existed in many European countries in the Middle Ages; that it alone had been able to make good its claim to share with the king the government of the state; and that its ability to do so was largely due to the fact that it had always acted in close alliance with the common lawyers. The lawyers were quite willing to allow to an assembly, in which they were the most influential party, supreme control over the law; they helped it to build up a workable code of procedure; and they saw the vital importance of securing and maintaining the privileges which it needed to fill the position in the state which it claimed-as with their own courts, so with Parliament, it must have the privileges necessary for the exercise of its jurisdiction."

During the earlier period of the Parliamentary opposition to the Stuart kings the possession of a workable code of procedure was the first condition precedent to the success of that opposition. Without it the House of Commons would have been an unorganized mob opposed to the highly organized forces of the central government. The second condition precedent was the assertion of the privileges needed to enable the House to use its procedure freely. Therefore, if we would understand the manner in which Parliamentary opposition took shape and developed

1 Vol. iv 181-182.

2 Ibid 166-169.

4 * Ibid 188-189; vol. ii 430-434.

3 Ibid 174-184.

Ibid 433; vol. iv 174-180.

during this period, we must concentrate our attention, in the first instance, upon these two questions of procedure and privilege. Procedure.

I have already spoken of the manner in which the lawyers helped the English Parliament to develope workable rules of procedure, and of the way in which these rules of procedure enabled it to become a useful organ in the government of a modern state. The main outlines of this procedure had become quite distinct in the Tudor period; and, in fact, were intimately related to developments which had begun to take place in the Parliaments of the fourteenth and fifteenth centuries.1 But it is clear that the growth of the Parliamentary opposition during the latter years of Elizabeth's reign, and its still more rapid growth under the first two Stuart kings, were rendering its rules both more detailed and more rigid. It would be quite out of place to attempt a detailed description of these rules; but some account of their main characteristics, and of the effects which this period of constitutional conflict had upon their development is necessary, because we cannot otherwise understand the strength of the opposition which the House of Commons was able to offer to the political views of the king and his supporters.

The most striking feature of the procedure of Parliament continued to be the influence exercised by the forms and conceptions of the common law. This influence was perhaps greater in the early seventeenth century than at any other period before or since, because the influence of the lawyers was naturally at its height in an age in which the great political questions of the day were fought out, both in Parliament and in the courts, under the guise of disputed questions of constitutional law; and, like so much else that was fought out and settled in this century, its effects upon Parliamentary procedure have been very permanent. It can be traced in many different directions. Firstly, we have seen that the whole fabric of Parliamentary procedure was regarded as a special law governing Parliament. It was the "lex et consuetudo Parliamenti," which governed the High Court of Parliament, just as the procedural rules of the common law, the civil law, or the canon law, governed the various courts which exercised jurisdiction in the English state. Secondly, this law was a customary law to be ascertained mainly by the precedents to be collected from the records of Parliament. It therefore possessed all the flexibility and adaptability of customary law; and this was no small advantage at this time of conflict. Thirdly, it was, like

1 Vol. ii 430-434; vol. iv 174-180.

Coke, Fourth Instit. 14, cited vol. ii 433.

3 Ibid.

the common law itself, a permanent and an independent body of customary law. Obviously this conception tended to give Parliament a position in the state as independent and authoritative as the position of the king. Lastly, we have seen that the whole conception of the office of Speaker in relation to this law was and still is strikingly similar to the relation of a judge to the common law. During this period the fact that the Speaker had a large control over the business of the House made the resemblance still more striking.

These characteristics of Parliamentary procedure were well marked in the Tudor period, and were probably older than that period. The constitutional conflicts of the seventeenth century produced many fresh developments, of which the following are the most important.

5

7

Firstly, in many instances the old customary rules of procedure were found to be too vague. In some of these they were defined and amplified by their application to concrete cases, the particulars of which were entered on the journals. In others new needs were met by new orders. Redlich points out that it is during this period that "the order book-the record which contains the decisions of the House as to the conduct of its business -makes its appearance as a regular part of the apparatus of the House"; and that these orders, "cover almost the whole field of the regulation of business." His summary of the results attained by this development shows clearly its leading features. "At this period," he says, "it becomes customary to fix a regular time for the sittings, the time chosen being from seven or eight in the morning until midday, and the Speaker is forbiden to bring up any business after the latter hour. The quorum of forty members for the competency of the House for business is settled; the adjournment or termination, as the case may be, of every sitting is made independent of the Speaker and placed, as a matter of principle, under the control of the House. Further, instructions are given to the Speaker as to the arrangement of the day's business, and his powers against irrelevant or discursive speaking are precisely determined. Express prohibitions are framed against arbitrary debates on the order of business for the day, and also against the carrying on of a debate on more than one subject at a time. The principle is also laid down that

1 Redlich, Procedure of the House of Commons ii 4, says that, like the rules of common law and equity, "the modern provisions for the conduct of business in Parliament welded together into a collection of rules, rest on the broad basis of the unwritten law, produced by centuries of usage in the two Houses."

2 Vol. ii 433 and n. 7. Redlich, op. cit. i 43-44. Ibid 47.

3 Vol. iv 97-98, 176-177; below 90.

the orders of the day are to give the amount which the House is to do, and that this is to be settled by the House itself by means of its orders. And by this time the custom has arisen of making the daily programme known to the House at the beginning of the sitting, after prayers. As a measure of discipline it is ordered that members leaving the House after the first business has been entered upon must pay a fine. The doors of the House are repeatedly locked, and the keys laid on the table, in order to secure the complete secrecy of the proceedings. The mistrust of the courtier Speaker comes out both in the formulation of the principle that the Chair is not entitled to vote, and in the rule that if the Speaker has any communication to make to the House he must be brief: he is to make needful communications to the House, says one of these orders, but is not to try to convince it by copious argumentation. The Speaker is expressly forbidden to give the king access to the bills which had been introduced, as he had done on former occasions. We find, too, at this time the establishment of the great parliamentary principle that no subject matter is to be introduced more than once in a session. Again, the order of forwarding bills to the Lords is determined, and the important rule laid down that at a conference between the Houses the number of delegates sent by the Commons must always be double that sent by the Lords. Finally, we should note, as of great importance, the development which took place in the use of committees and the institution of committees of the whole House."

Secondly, as Redlich's summary shows, the position which the Speaker occupied in the Tudor period of the representative and chairman of the House, of royal nominee, and of messenger between the House and the king,1 was becoming uncomfortable. The scene at the close of the Parliament of 1629, when Speaker Finch was held down in his chair and prevented from obeying the orders of the king to adjourn the House, was the turning point in the history of the office. The behaviour of Speaker Lenthall, when Charles I. made his attempt to arrest the five members, was very different. It is clear that the Speaker was tending to become less the representative of the king and more the representative of the House. When that development is complete in the latter half of the century,2 his functions will tend to become more and more judicial, and he will tend to become more and more an impartial and independent interpreter of the lex et consuetudo Parliamenti, subject only to the control of the House.

1 Vol. iv 97-98, 176-177; see Redlich, op. cit. ii 156-168 for a sketch of the history of the office.

2 Below 255.