Графични страници
PDF файл
ePub

A.D. 1327.

to his majesty certain particulars in regard to a proposed 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 commons 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 another triumph on behalf of the commons, which tended to aggrandise their authority, especially with reference to the grant of public money. Up to the time of Edward III., it is not easy to define Functions wherein the functions of the national assembly differed from those which appertained to the king's particular council. The judgments of the ordinary council would undoubtedly derive additional weight and solemnity 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 incorporated 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 attempted to participate in the exercise of remedial justice; and before the decease of that monarch, we find all the governmental institutions of England - namely, a king's council, a parliament of two chambers (into which the ancient great baronial council had become gradually

of Parlia

ment.

[blocks in formation]

merged), and courts of law-in distinct shape and har- 1377. monious exercise.

The reign of Edward III. was, in fact, a great constitutional 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." As a rule, under the Plantagenet sovereigns, the parliaments were newly elected every time they were convened, and not kept alive from year to year by prorogations.

King Edward's legislative assemblies, moreover, were vigilant asserters of popular rights. They obtained from their sovereign repeated confirmations of the Great Charter, and succeeded in establishing three essential principles of government—namely, the illegality of raising money without consent of Parliament; the necessity 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.h

1512.

From the latter part of the reign of Edward I. until the A.D. 1299– early part of the reign of Henry VIII., being a period of years, it was customary for the monarchs of England

213

The 'great councils' continued for a time to be occasionally convened 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. (See Dicey, p. 13; Knight, Pop. Hist. of Eng. vol. iii. p. 438; Hearn, Govt. of Eng. pp. 407, 461.)

e

Palgrave, King's Council, pp. 22, Dicey, p. 13. First Lords' Report, p. 169.

64.

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

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 habitual practice. (Parry, Parlts. pp. lvii.-lix.)

h Taylor, Book of Rights, pp. 67, 68. Cox, Inst. Eng. Govt. p. 229. Parl. Hist. vol. i. p. 141.

Frequent

meetings of Parlia ment.

The Privy

Council

ment.

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 mentioned, 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.1

And here we may notice, that it had long been cusin Parlia- tomary for the king's councillors, as confidential servants of the crown, to be present at every meeting of 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 synonymous. 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.* Recent authorities, however, are of opinion that this is erroneous. The privy councillors undoubtedly formed part of the great council, 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

'Parry, Parlts. of England, pp. lv.-lix.

Macqueen, Practice of Lords and

Privy Council, pp. 671, 680.
*Hale, Jurisdict. House of Lords,
p. 85.

regarded in the light of assistants or advisers merely, whilst the authoritative and judiciary power was exercised by the House itself. 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 matters of judicial concern.TM The Commons, meanwhile, 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."

the Privy

Council.

In process of time, the connexion which anciently sub- Growth of sisted 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 gradually assumed a separate and independent jurisdiction of its own. This change took place under Richard II., when the council was entirely separated from A.D. 1397. Parliament, and began to fulfil its appropriate functions as a distinct tribunal. With the sanction of Parliament its separate duties were defined, and thenceforward its authority was acknowledged without any further opposition, save only when it attempted to interfere in matters. beyond its jurisdiction. The council continued to gain strength and influence until it attained the climax of its powers under the Tudor princes, whose policy was to in- Parliacrease the authority of the Privy Council, and to govern as much as possible without the aid of Parliaments. A notable convened. instance of this is afforded in the reign of Henry VIII.,

[blocks in formation]

ment

seldom

Relations between the king and his ministers.

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.P

It will not fail to be observed that the presence, from the very first, of the members of the king's Privy 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 gradual development of free institutions which so happily distinguishes the reigns of our English monarchs from the accession of Henry III., a remarkable incident is recorded, of the time of Edward II., which manifests a decided recognition in that early period, of constitutional relations between the sovereign, his minisA.D. 1316. ters, and parliament. In 1316, the Earl of Lancaster, who had heretofore been a prominent leader of a powerful 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 installed 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

P Macqueen, pp. 675, 680.

« ПредишнаНапред »