The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0091/00913.txt

Text File | 1992-08-07 | 30KB | 480 lines

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$Title{History Of Europe During The Middle Ages
Part XIII}
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$Author{Hallam, Henry}
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$Subject{parliament
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$Date{}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XIII

     There is no great difficulty in answering the question why the deputies
of boroughs were finally and permanently ingrafted upon parliament by Edward
I. ^y The government was becoming constantly more attentive to the wealth that
commerce brought into the kingdom, and the towns were becoming more
flourishing and more independent.  But chiefly there was a much stronger
spirit of general liberty and a greater discontent at violent acts of
prerogative from the era of Magna Charta; after which authentic recognition of
free principles many acts which had seemed before but the regular exercise of
authority were looked upon as infringements of the subject's right.  Among
these the custom of setting tallages at discretion would naturally appear the
most intolerable; and men were unwilling to remember that the burgesses who
paid them were indebted for the rest of their possessions to the bounty of the
crown.  In Edward I.'s reign, even before the great act of Confirmation of the
Charters had rendered arbitrary impositions absolutely unconstitutional, they
might perhaps excite louder murmurs than a discreet administration would risk.
Though the necessities of the king, therefore, and his imperious temper often
led him to this course, ^z it was a more prudent counsel to try the
willingness of his people before he forced their reluctance.  And the success
of his innovation rendered it worth repetition.  Whether it were from the
complacency of the commons at being thus admitted among the peers of the
realm, or from a persuasion that the king would take their money if they
refused it, or from inability to withstand the plausible reasons of his
ministers, or from the private influence to which the leaders of every popular
assembly have been accessible, much more was granted in subsidies after the
representation of the towns commenced than had ever been extorted in tallages.

[Footnote y: These expressions cannot appear too strong.  But it is very
remarkable that to the parliament of 18 Edward III. the writs appear to have
summoned none of the towns, but only the counties.  Willis, Notit. Parliament.
vol. i.  Preface, p. 13.  Prynne's Register, 3d part, p. 144. Yet the citizens
and burgesses are once, but only once, named as present in the parliamentary
roll; and there is, in general, a chasm in place of their names, where the
different ranks present are enumerated.  Rot. Parl. vol. ii. p. 146.  A
subsidy was granted at this parliament; so that, if the citizens and burgesses
were really not summoned, it is by far the most violent stretch of power
during the reign of Edward III.  But I know of no collateral evidence to
illustrate or disprove it.]

[Footnote z: Tallages were imposed without consent of parliament in 17 E. I.
Wykes, p. 117; and in 32 E. I.  Brady's Hist. of Eng. vol. ii.  In the latter
instance the king also gave leave to the lay and spiritual nobility to set a
tallage on their own tenants.  This was subsequent to the Confirmatio
Chartarum, and unquestionably illegal.]

     To grant money was, therefore, the main object of their meeting; and if
the exigencies of the administration could have been relieved without
subsidies, the citizens and burgesses might still have sat at home and obeyed
the laws which a council of prelates and barons enacted for their government.
But it is a difficult question whether the king and the peers designed to make
room for them, as it were, in legislation; and whether the power of the purse
drew after it immediately, or only by degrees, those indispensable rights of
consenting to laws which they now possess.  There are no sufficient means of
solving this doubt during the reign of Edward I. The writ in 22 E. I. directs
two knights to be chosen cum plena potestate pro se et tota communitate
comitatus praedicti ad consulendum et consentiendum pro se et communitate
illa, his quae comites, barones, et proceres praedicti concorditer
ordinaverint in praemissis.  That of the next year runs, ad faciendum tunc
quod de communi consilio ordinabitur in praemissis.  The same words are
inserted in the writ of 26 E. I.  In that of 28 E. I. the knights are directed
to be sent cum plena potestate audiendi et faciendi quae ibidem ordinari
contigerint pro communi commodo. Several others of the same reign have the
words ad faciendum.  The difficulty is to pronounce whether this term is to be
interpreted in the sense of performing or of enacting; whether the
representatives of the commons were merely to learn from the lords what was to
be done, or to bear their part in advising upon it.  The earliest writ, that
of 22 E. I., certainly implies the latter; and I do not know that any of the
rest are conclusive to the contrary.  In the reign of Edward II. the words ad
consentiendum alone, or ad faciendum et consentiendum, begin; and from that of
Edward III. this form has been constantly used. ^a It must still, however, be
highly questionable whether the commons, who had so recently taken their place
in parliament, gave anything more than a constructive assent to the laws
enacted during this reign.  They are not even named in the preamble of any
statute till the last year of Edward I.  Upon more than one occasion the
sheriffs were directed to return the same members who had sat in the last
parliament, unless prevented by death or infirmity. ^b

[Footnote a: Prynne's 2d Register.  It may be remarked that writs of summons
to great councils never ran ad faciendum, but ad tractandum, consulendum et
consentiendum; from which some would infer that faciendum had the sense of
enacting; since statutes could not be passed in such assemblies.  Id. p. 92.]

[Footnote b: 28 E. I., in Prynne's 4th Register, p. 12; 9 E. II. (a great
council), p. 48.]

     It has been a very prevailing opinion that parliament was not divided
into two houses at the first admission of the commons.  If by this is only
meant that the commons did not occupy a separate chamber till some time in the
reign of Edward III., the proposition, true or false, will be of little
importance.  They may have sat at the bottom of Westminster Hall, while the
lords occupied the upper end.  But that they were ever intermingled in voting
appears inconsistent with likelihood and authority.  The usual object of
calling a parliament was to impose taxes; and these for many years after the
introduction of the commons were laid in different proportions upon the three
estates of the realm.  Thus in the 23 E. I. the earls, barons, and knights
gave the king an eleventh, the clergy a tenth; while he obtained a seventh
from the citizens and burgesses; in the twenty-fourth of the same king the
two former of these orders gave a twelfth, the last an eighth; in the
thirty-third year a thirtieth was the grant of the barons and knights and of
the clergy, a twentieth of the cities and towns; in the first of Edward II.
the counties paid a twentieth, the towns a fifteenth; in the sixth of Edward
III. the rates were a fifteenth and a tenth. ^c These distinct grants imply
distinct grantors; for it is not to be imagined that the commons intermeddled
in those affecting the lords, or the lords in those of the commons.  In fact,
however, there is abundant proof of their separate existence long before the
seventeenth of Edward III., which is the epoch assigned by Carte, ^d or even
the sixth of that king, which has been chosen by some other writers.  Thus the
commons sat at Acton Burnell in the eleventh of Edward I., while the upper
house was at Shrewsbury.  In the eighth of Edward II. "the commons of England
complain to the king and his council, &c." ^e These must surely have been the
commons assembled i