Parliament : its history, constitution and practice

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Chapter I

THE word "parliament" originally meant a talk. In its Latin form it is applied by monastic statutes of the thirteenth century to the talk held by monks in their cloisters after dinner, talk which the statutes condemn as unedifying. A little later on the term was used to describe solemn conferences such as that held in 1245 between Louis IX of France and Pope Innocent IV. When our Henry III summoned a council or conference of great men to discuss grievances he was said by a contemporary chronicler to hold a parliament. The word struck root in England, and was soon applied regularly to the national assemblies which were summoned from time to time by Henry's great successor, Edward I, and which took something like definite shape in what was afterwards called the "model parliament" of 1295. The word, as we have seen, signified at first the talk itself, the conference held, not the persons holding it. 7

By degrees it was transferred to the body of persons assembled for conference, just as the word "conference" itself has a double meaning. When Edward I was holding his parliaments institutions of the same kind were growing up in France. But the body which in France bore the same name as the English parliament had a different history and a different fate. The French "parlement" became a judicial institution, though it claimed to have a share in the making of laws.

The history of the English parliament may be roughly divided into four great periods; the period of the mediaeval parliaments, of which the parliament of 1295 became the model and type; the period of the Tudors and Stuarts, having for its central portion the time of conflict between king and parliament, between prerogative and privilege; the period between the Revolution of 1688 and the Reform Act of 1832; and the modern period which began in 1832.

Let us try and trace, in broad outline, the elements out of which the parliament of 1295 grew up, and the main stages through which its development passed.

It had always been regarded in England as a principle that in grave and important matters, such as the making of laws, the king ought not to act without counsel and consent. The counsel and consent which the Saxon kings sought was that of their wise men, and the "Witenagemot" of English constitutional history was a meeting of these wise men. It seems, says Maitland, to have been a very unstable and indefinite body. It was an assembly of the great folk. When there was a strong king it was much in his power to say how the assembly should be constituted and whom he would summon. When the king was weak the assembly was apt to be anarchical. The Saxon witenagemot was not numerous. Small men, especially if they lived at a distance, could not come. Great men often would not come. The institution was not much of a safeguard against oppression. Still it was an important fact that, on the eve of the Norman conquest, no English king had taken on himself to legislate or tax without the counsel and consent of a national assembly, an assembly of the wise,, that is of the great.

The Norman conquest made a great break j in English institutions, but not so great as was at one time supposed. In the first place William the Conqueror had to build with English materials, and on English foundations. In the next place English institutions had, during the reign of Edward the Confessor, been rapidly approximating to the continental type. What William did was to emphasize, rather than to introduce, certain principles of what was afterwards vaguely described as the "feudal system," and to adapt them to his own purposes. He insisted on the principle that all land in the country was ultimately held of the king. There were to be no full owners of land under him only holders or tenants. He insisted on the principle that every landholder in the country owed direct allegiance to the king. The landholder might hold his land under, and owe allegiance to, another lord, but his oath of allegiance to that lord was qualified by his allegiance to the king. And, in portioning out the English soil among the motley band of adventurers who had followed him and whom he had to reward for their share in his raid, he tried to break the strength of the greater men, by scattering their estates over different parts of England, and by mixing up with them smaller men, who held their land, not under any intermediate lord, but directly under the king. He did not wholly succeed, as he and those after him found to their cost. But the existence, by the side of the greater lords, of a number of comparatively small landholders, who also held their land directly from the king, had an important bearing on the development of parliament.

The Norman kings were despots, untrammelled by any constitutional restrictions, and controlled only by the resistance of powerful and turbulent subjects. But there were the traditions of better things past; there were the charters, often broken but always there, by the help of which kings with doubtful titles obtained succession, and in which they promised to observe those traditions; and there was a feeling that, apart from these promises, it was prudent and politic to obtain an expression of counsel and consent, if it could be obtained. "Thrice a year," says the Saxon chronicle of the Conqueror, " king William wore his crown every year he was in England; at Easter he wore it at Winchester, at Pentecost at Westminster, and at Christmas at Gloucester; and at these times all the men of England were with him — archbishops, bishops and abbots, earls, thegns and knights." "All the men of England." What did this mean? To the Saxon chronicler it probably meant the men who counted, the wise and great, the men who might have been expected to attend a witenagemot. But William's court was a feudal court, and from the Norman point of view perhaps it was an assembly of the king's tenants in chief. These, however, were numerous, and many of them were small men, so that probably only a select few were summoned. Courts or great councils of the same kind were held under the later Norman kings, but we know little about their composition or functions. All that can be said with safety is that the few legislative acts of this period were done with the counsel and consent of the great men.

What we have to watch is the transformation of the body whose counsel and consent is required from a merely feudal body, a body of great vassals or tenants in chief, to a body more representative of the nation at large.

Henry II did something when he imposed a tax on movables, the Saladin tithe of 1188, and had it assessed by a jury of neighbours, a jury in some sense representative of the taxpayer and of the parish in which he lived, and thus brought into connection the ideas of taxation and representation.

The Great Charter of 1215 declared that exceptional feudal aids were not to be levied without the common counsel of the realm. But this counsel was to be given by an assembly consisting of prelates and great lords summoned singly, and of tenants in chief summoned collectively through the sheriffs. So it was still a feudal assembly.

A further step was taken when, in 1254, at a time when Henry III was in great need of money, each sheriff was required to send four knights from his county to consider what aid they would give the king in his great necessity. For these knights represented, not the tenants in chief, but all the free men of their county. They were representatives of counties.

Eleven years later, in 1265, Simon de Montfort summoned to his famous parliament representatives, not merely of counties, but also of cities and boroughs.

Edward I held several great assemblies, which were usually called parliaments, and which made some great laws, but some of these laws were made without the assent of representatives of the commons.

The model parliament, which settled the general type for all future times, was held in 1295. To this parliament King Edward summoned separately the two archbishops, all the bishops, the greater abbots, seven earls and forty-one barons. The archbishops and bishops were directed to bring the heads of then- cathedral chapters, their archdeacons, one proctor for the clergy of each cathedral, and two proctors for the clergy of each diocese. Every sheriff was directed to cause two knights of each shire, two citizens of each city, and two burgesses of each borough, to be elected.

Two points should be specially noticed about the constitution of this parliament.

In the first place it was not a feudal court, nor a meeting of the king's tenants, but a national assembly. Edward had suffered much in his father's time from the great barons, who had made him prisoner at the battle of Lewes, and he wished to draw counsel and help from other quarters. His parliament was intended to represent the three great estates or classes into which mediaeval society might be roughly divided, the clergy, the barons, and the commons; those who pray, those who fight and those who work, as Maitland puts it. The same idea underlay the States General which were coming into existence about the same time in France, and which met, at intervals, during many centuries. After an interval of 175 years the three estates of France were for the last time summoned to meet as separate bodies in 1789, but were at once merged in the national assembly which began the French Revolution.

The idea of the three estates was never realized in England. The clause by which archbishops and bishops were directed to bring with them representatives of their clergy, a clause still remaining in the writ by which they are summoned at the present day, was persistently ignored. The clergy as a body preferred to stand aloof, to meet in their own clerical assemblies or convocations, and to settle there what contribution they would make to the king's needs. The archbishops, bishops and greater abbots attended, as they had attended the great councils of previous kings. But then they were not merely clerics, they were great feudal lords and great holders of land.

The knights of the shires were drawn from the same class as the greater barons. The word " baron " originally meant simply " man," and for some time there was much uncertainty as to who should be treated as a man so great as to be entitled to a separate summons, and who should be left to be represented, like other freemen of the lesser sort, by the knights of the shires. The title of baron came eventually to be confined to the greater men who were summoned separately.

The knights who represented the shires, when they came to Westminster, mingled themselves with the representatives of the cities and boroughs. In the time of Edward III there was a risk of the merchants being consulted as a separate class for the purpose of taxation, but this risk was avoided. If things had fallen out somewhat differently the English parliament might have sat as three separate houses, as in France, or might have been grouped in a single house, as in Scotland, or might have formed four houses, as in Sweden. But the inferior clergy abstained from attendance, the greater clergy, the spiritual lords, sat with the lay or temporal lords, and the knights of the shires threw in their lot with the citizens and burgesses. Thus parliament became an assembly, not of three estates, but of two houses, the house consisting of the lords spiritual and temporal, and the house representing the commons, the house of lords and the house of commons. The other point to be noticed is that parliament was an expansion, for temporary purposes, of the king's continuous council. The Norman and Plantagenet kings, like other kings, needed continuous assistance, both for domestic and ceremonial purposes, and for the business of government, such as the administration of justice, and the collection and expenditure of revenue. The courts or councils composed of the men on whom the king most relied for this assistance bore various names, varied in number, and exercised varying functions. As the work of government increased and specialized, these nebulous bodies split up into more coherent parts, with more definite functions, and out of them grew the king's courts of justice and the great departments of the central government. When the king held his great assemblies it was necessary that he should have about him the men on whom he was accustomed to place special reliance for advice and assistance. Accordingly there were summoned by name to the parliament of 1295 men who were not earls or barons, but were members of the king's council, and in particular the king's judges. And to this day the judges of the supreme court are summoned to parliament, and some of them take their seats in the house of lords when the king opens parliament.

The fact that the mediaeval parliament was an expansion of the king's council explains the nature of the business which it had to transact. The immediate cause of summoning a parliament was usually want of money. The king had incurred, or was about to incur, expenses which he could not meet out of his ordinary resources, such as the revenues of his domain and the usual feudal dues. He summoned a parliament and, through his chancellor or some other minister, explained what he wanted and why he wanted it. The king's speech might touch on other great matters, about which he might need advice or approval, but money was the gist. On the other hand the king's subjects had grievances for which they desired redress. The grievances would be of different kinds, breach of old customs, failure to observe charters or laws, oppression by the king's officers or by great men, maladministration of justice, difficulties in the way of settling private disputes, and so forth. For the redress of these grievances petitions were presented, petitions which in their multifarious character were not unlike the statements of grievances presented to the national assembly, on the eve of the French Revolution. The petitions were to the king in parliament or to the king in his council, and parliament was the petitioning body, the body by or through whom the petitions were presented. The remedies required would be classified in modernl anguage as judicial, legislative or administrative. But in the thirteenth century, these distinctions had not been clearly drawn. A statute made by Edward I in his parliament of 1292, known as the Statute of Waste, and based on a petition presented to him in that parliament, supplies a good illustration of the way in which judicial, legislative and administrative remedies might be combined. The statute begins with a long story showing how Gawin Butler brought a complaint before the king's justices about waste done to his land, but died before obtaining judgment; how his brother and heir, William, who was under age and a ward of the king, sought to continue the proceedings; and how the justices differed in opinion as to whether he was entitled to do so. Thereupon the king, in his full parliament by his common council or by general consent (for the Latin phrase wavers between the two meanings of "council" and "counsel") ordains that all heirs may have an action by writ of waste for waste done in the time of their ancestors, and the king himself commands his justices to give judgment accordingly. Here the king acts partly in his legislative capacity, laying down a general rule, partly in his judicial capacity, as having power to review and control the proceedings of his justices, and partly in an administrative capacity as guardian of an infant heir.

At the beginning of each parliament the king, or his great council on his behalf, appointed persons to receive and to try these petitions, that is to say to sort them out, to consider what remedy, if any, each petition required, and to devise an appropriate form of remedy. The triers or auditors of petitions were really committees of the king's council. Until near the close of the nineteenth century receivers and triers of petitions from England, Scotland and Gascony, respectively (for Edward I ruled in Gascony as well as England) were appointed at the beginning of each parliament by an entry in the lords journals. But their functions had ceased for many centuries. „

The sittings of an early Plantagenet parliament did not extend over many days. Travelling was difficult, dangerous and costly; members could not afford to stay long away from their homes. The main object of the meeting was usually to strike a bargain between the king and his subjects. The king wanted a grant of money, and it was made a condition of the grant that certain grievances, about which petitions had been presented, should be redressed. When an agreement had been arrived at as to how much money should be granted and on what terms, the commoners and most of the lords went their ways, leaving the king's advisers, the members of his council, to devise and work out, by means of legislation or otherwise, such remedies as might be considered appropriate and advisable.

It is to the Plantagenet period that we owe the most picturesque of our parliamentary ceremonials, those which attend the opening of Parliament and the signification of the royal assent to Acts. And we ought to think of the Pantagenet parliament as something like an oriental durbar, sucb as was held by the late Amir of Afghanistan, with the king sitting on his throne, attended by his courtiers and great chiefs, hearing the complaints of his subjects and determining whether and how they should be met.

Of the changes in the composition of parliament which took place during this period something will be said later on, but a few words must be said here about the changes in its powers and functions, specially with respect to the two main branches of its business, taxation and legislation.

Before the end of the fourteenth century parliament had established two principles of taxation. In the first place they had taken away the power of the king to impose direct taxes without their consent, and had restricted his power to impose indirect taxes without their consent to such taxes as might be justified under the customs recognized by the Great Charter. In the second place parliament had acquired the right to impose taxes, direct and indirect, of all kinds. In imposing these taxes they did not care to go beyond the immediate needs of the case. Hence the necessity for frequent parliaments.

According to the theory of the three estates, each estate would tax itself separately, and this theory was at first observed. The clergy granted their subsidies, not in parliament but in convocation, and continued to do so, in theory at least, until after the Restoration of 1660. But long before this time they had agreed to grant or submit to taxes corresponding to those imposed on the laity. At a much earlier date, before the end of the fourteenth century, the lords and commons, instead of making separate grants, agreed to join in a common grant. And, as the bulk of the burden fell upon the commons, they adopted a formula which placed the commons in the foreground. The grant was made by the commons, with the assent of the lords spiritual and temporal. This formula appeared in 1395, and became the rule. In 1407, eight years after Henry IV came to the throne, he assented to the important principle that money grants were to be initiated by the house of commons, were not to be reported to the king until both houses were agreed, and were to be reported by the Speaker of the commons house. This rule is strictly observed at the present day. When a money bill, such as the finance bill for the year or the appropriation bill, has been passed by the house of commons and agreed to by the house of lords it is, unlike all other bills, returned to the house of commons. On the day for signifying the royal assent the clerk of the house of commons takes it up to the bar of the house of lordsj then hands it to the Speaker, who delivers it with his own hand to the officer charged with signifying the king's assent, the clerk of parliaments.

Ever since the reign of Henry VII the enacting formula of Acts of Parliament has run thus —

"Be it enacted by the king's (or queen's) most excellent majesty by and with the advice and assent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows." This formula grew into shape in what has been called above the mediaeval period of parliament. At the beginning of this period the king made laws with the requisite advice and assent. One important early Act was expressed to be made at the instance of the great men. Later on the concurrence of the whole parliament, including the commons, became essential. But the commons usually appear at first in a subordinate position. Throughout the fourteenth century the kind of form most usually adopted is that a statute is made with the assent of the earls, prelates and barons and at the request of the knights of the shires and commons in parliament assembled. The commons appear as petitioners for laws rather than as legislators. And this is in fact what they were. They presented their petitions, which might ask for amendment or clearer declaration of the law. It was for the king, with the aid of those more intimately in his counsels, to determine whether legislation was required and if so what form it should assume. Throughout the fourteenth century there was much risk that, even if the making of a law were granted, the law, when made, would not correspond to the petition on which it was based. The statute was not drawn up until after the parliament was dissolved, its form was settled by the king's council, and there were many complaints about the variance between petitions and statutes. At last in 1414, soon after the accession of Henry V, the king conceded the point for which the commons had repeatedly pressed. The commons prayed "that there never be no law made and engrossed as statute and law neither by additions nor discriminations by no manner of term or terms which should change the sentence and the intent asked." And the king in reply granted that from henceforth "nothing be enacted to the petition of the commons contrary to their asking, whereby they should be bound without their assent." This concession led to an important change in the method of framing statutes. It became the practice to send up to the king, not a petition, but a bill drawn in the form of a statute, so that the king was left no alternative beyond assent or dissent. Legislation by bill took the place of legislation on petition. This practice became settled about the end of the reign of Henry VI.

The changes in practice were reflected by changes in the legislative formula. Statutes were expressed to be made by the advice and assent of the lords and the commons, thus putting the two houses on an equal footing. And before the middle of the fifteenth century a significant addition was made to the formula. Statutes were expressed to be made, not only with the advice and assent of the lords and commons in parliament, but "by the authority of the same." This was an admission that the statute derived its authority from the whole parliamerit. The two houses had become not merely an advising, consenting, or petitioning body, but a legislative authority.

The power to refuse assent to legislation still remained, and it was often exercised until a much later date. It was signified in a courteous form — "The king will consider."

The political power of parliament grew rapidly in the fourteenth and fifteenth centuries. In 1327 a parliament which had been summoned in the name of Edward II resolved, in summary fashion, on his deposition and forced him to resign. But the proceedings on the deposition of Richard II were more formal. Richard was forced to summon a parliament, and then to execute a deed of resignation. The parliament assembled in Westminster Hall, which Richard had rebuilt, and which stood then much as it stands now. Parliament accepted his resignation and went on, by further resolutions, to declare that he was deposed and to resolve that Henry of Lancaster should be king in his place. A parliament which could thus make and unmake kings was a formidable body. The Lancastrian kings, it has been said, were kings by Act of Parliament; they meant to rule and did rule by means of parliament. In the quarrels of the seventeenth century between king and commons men looked back to the Lancastrian period as the golden age of parliament, and precedents from that period were freely quoted for parliamentary use. But in the fifteenth century the times were not ripe for parliamentary government. The powers of parliament fell into the hands of turbulent nobles. Henry V was a famous and capable warrior. But Henry VI began his reign as an infant, and ended it as an idiot; he was ruled by unscrupulous uncles and a termagant queen; and the bloody faction fights known as the Wars of the Roses brought the Plantagenet dynasty to a close, weeded out the older nobility, and cleared the way for a new form of monarchy.

The age of the Tudors, at least during the reigns of Henry VIII and Elizabeth, is a period of strong monarchs governing through the strength of parliament. Henry VIII accepted Henry IV's principle that the king should rule through parliament, but worked that principle in an entirely different way. He made parliament the engine of his will. He persuaded or frightened it into doing anything he pleased. Under his guidance parliament defied and crushed all other powers spiritual and temporal, and did things which no king or parliament had ever attempted to do, things unheard of and terrible. Elizabeth scolded her parliaments for meddling with matters with which, in her opinion, they had no concern, and more than once soundly rated the Speaker of her commons. But she never carried her quarrels too far and was always able to end her disputes by some clever compromise. The result was that her parliaments usually acquiesced in and gave effect to her wishes. Before Henry VIII the life of parliament was usually comprised within a single session, and the sessions were short. Parliaments now grew longer. Henry VIII's Reformation parliament lasted for seven years. One of Elizabeth's parliaments lasted for eleven years, though, it is true, it held only three sessions. Parliament was no longer a meeting dissolved as soon as some specific business was finished. It tended to become a permanent power in the State, and a power with formidable attributes. A monarch that swayed and did not fear parliament could afford to recognize its sovereignty, for it was his own. And never were the authority and sovereignty of parliament more emphatically asserted than in Tudor times. Sir Thomas Smith was secretary to Queen Elizabeth, and in a book which was published in 1589, and which he called The Commonwealth of England and the manner of government thereof, he declares that "the most high and absolute power of the realm of England consisteth in the parliament." Such doctrines could be preached with safety while Tudor kingcraft remained; when it departed they shook and upset the throne.

It was in Tudor times that both houses began to keep their journals and that the house of commons acquired a permanent home of their own. But these are matters of which more will be said hereafter. Owing to the existence of the journals we now begin to know much more about the proceedings of parliament than in previous times. Under the Plantagenets some of the characteristic features of parliamentary procedure, such as the three readings of bills, had been settled, but had not been recorded. In the journals the dates of each reading are given. The entries are at first scanty, but are soon amplified. Rulings and practices are noted, precedents are searched for and observed. The records of the Elizabethan journals are expanded by Sir Symonds d'Ewes from other sources. Sir Thomas Smith, in the book referred to above, and Hooker, in the book which he wrote for the guidance of the parliament at Dublin, have given us descriptions which enable us to understand how business was conducted in the English parliament under the great queen. The general outlines of parliamentary procedure were settled, and much of the common law of parliament, the law which is not to be found in standing orders, may be traced back to Elizabethan times.

James I came to the throne by inheritance. He talked much and foolishly about his divine right to rule, and soon came into collision with his parliaments. Parliament claimed and obtained some important rights, such as the right to adjourn without the king's leave, and the right to determine disputes about the validity of elections. Other questions, such as the right to levy taxes, remained to be fought out under his successor. The king and parliament were hostile bodies, and parliament was jealous of the king's interference with, or even knowledge of, its proceedings.