nation, by the acquisition of the functions of advisers were gradually transformed into a House of Lords, representing normally a noble family. The dates at which certain families were recognized as entitled to representation is disputed. The stages in the transformation are indisputable. The summons to the men who became the Commons were always writs for an election, and they assumed the important work in behalf of the nation which had formerly been done in behalf of the greater landowners by the greater barons. The real power became transferred to the representatives of the towns as representatives of the nation.1 § 8. THE EVOLUTION OF THE NATIONAL ASSEMBLY UPON THE BASIS OF LOCAL REPRESENTATION. We may bring the work of a Parliament under four heads," namely, (1) the discussion of affairs of state, more especially foreign affairs; (2) the audience of petitions and legislation; (3) taxation or supply; (4) judicial business, the determination of causes civil and criminal. The roll of the Parliament of 1305 shows that all these classes of work were transacted. It was done by the Parliament as a whole, but we find moments when the Commons withdraw and certain business is done by the "full Parliament in the presence of the King himself, the Archbishop of Canterbury, and many Bishops, Earls, Barons, and others of the King's Council." We should be safe in concluding from this that the Lords exercised all these functions, but that the King's Council also exercised the same 3 1 See Argument, Stubbs, Constitutional History, 428; Freeman, Essays, 4th series, 424; Conclusion of Medley, 129. 2 See the Division made by Maitland, Memorandum de Parliamento, XLVIII. 3 Ibid., XLII. functions. In this particular assembly, the King's Council, the Barons, Prelates, Earls, and the Knights and Burgesses worked together for just three weeks. "On the 21st of March, a proclamation was made telling the Archbishops, Bishops, and other prelates, Earls, Knights, Citizens, and Burgesses in general that they might go home. Those Bishops, Earls, Barons, Justices, and others who were members of the Council were to remain behind, and so were all those who had business to transact. But the Parliament was not at an end." Here the work is done by what is really the King's Council. In Edward I's time, the men, the organizations in which they are named as members, and their functions are as yet undefined. Distinctions might be drawn between the powers of the Privy Council when acting alone, when acting with the Common Council, or Great Council, which was to become the House of Lords; between the Assembly as a legislative body and as a law court. Such nice distinctions are valuable for purposes of analysis, but they only have a real significance when, as in the latter part of the reign of Edward III, or even earlier, the institutions of the country assumed a settled form. "While the contemporaries of the Conqueror saw | nothing irregular in the exercise of an arbitrary justice by the king and his courtiers, the subjects of Edward III, accustomed as they were to the regular administration of law, beheld in the Council and the Law Courts the contrast between irresponsible power and legal authority."1 "In attacking the former they dreamed that they were asserting old privileges, while they were in reality struggling for new rights." 2 1 A. V. Dicey, Privy Council, p. 8. 2 Ibid., 19. Finally the Great Council combined with the Commons. Whereas the old Commune Concilium had been the smaller of the two concentric circles of which the larger, with the King as the center, included the King's Privy Council, the Prelates, Barons, Earls, Knights, and Burgesses; the Commune Concilium, in the fourteenth century, became the House of Lords, and, combined with the Commons, formed a new national convention in no sense coinciding with the Council; while the smaller body surrounding the king ceased to be the King's Court, and tended to become a separate assembly of officials, bound by a particular oath, paid a regular salary, and meeting under precise rules. Thus arose the House of Lords. We have to discuss the transfer of its power to the representatives of the municipal principle. 1 § 9. DELIBERATION. — The forms of the writs of summons furnish a hint upon this subject. The special writs addressed to the magnates usually define their function in council by the word tractare. In 1298 the form is tractatum et colloquium habituri, and from 1299 generally tractaturi vestrumque consilium impensuri. In 1295, both knights of the shire and representatives of the towns are to be chosen ad faciendum quod tunc de communi consilio ordinabitur. This form is retained until Edward II, when the words ad consentiendum are added. Under Edward III faciendum is frequently omitted, and in the reign of Richard II the function of the Commons is reduced to simple consent. "Under Edward I, the general deliberative functions of Parliament scarcely come before 1 See Pike, on King in Council in his Parliament, 20; ibid., 43 ff. 2 Stubbs, Constitutional History of England, II, 272, 275. us with sufficient distinctness to mark progress. It is certain that under Edward III, whenever the Peers were assembled, the King's Officers sat with them; at first, perhaps, with the right of voting, but later as mere advisers. But by the reign of Richard II, the Great Council (though still frequently convoked) had surrendered their most important functions to Parliament, and the Council itself had become the same body which, in constitution and powers, it remained for at least a century." "The Commons were not, until Edward IV, summoned as a matter of right.” This was not brought about arbitrarily, but followed as naturally from the summons at the necessity of the sovereign as that need flowed from the nature of nationality and the vital principle thereof. So the important function of deliberation in the noble branch of Parliament became the constitutional bond in the administration of the realm, and was transferred to that branch which represented the object of that administration, the local self-governing communities. 10. THE AUDIENCE OF PETITIONS AND LEGISLATION. This bond was the hearing of petitions. In the early part of the fourteenth century, the people pray "our Lord the King in his Council." They do not ask for anything that could be called legislation. The Parliament of 1305, which had numerous petitions, shows little real legislation, and the responses that are given are not "private acts" of Parliament. The King's answer may be "fiat justitia" or "we ' Dicey, The Privy Council, 22. 'Ibid., 24; Gneist, Constitutional History, 420–421. /grant," but in any case it is as a royal boon.' They are, moreover, not petitions to Parliament but to the King in his Council, and they are not such subjects as would be debated in a large assembly. The work of the Council and of Parliament was to receive the petitions and "to transmit them to the proper courts, places, or persons where they were proper to be decided." The operation was probably that of reading and referring. "The work of hearing petitions was long and laborious, and had threatened to deprive the King and his chief advisers of any leisure for the great affairs of state." In the fourteenth century the Lords would dare insist upon the right to follow the course of a petition, and demand its execution, not as a boon, but as a right. This was legislation, an order on the executive. As yet there was no concurrence of the Commons.3 "During the reign of Richard II, the commands of the king on the petitions submitted to him were acted upon 'with the advice of his Council' or 'by advice of the Treasurer'; but in one instance the words 'the King has granted' occur without any allusion to the Council. Petitions were sometimes addressed to the Council only, and they answered them, without reference to, or using the name of, the king. On other occasions, petitions to the king were referred by him to the Council, with directions to examine them and to do what law and reason required.' "4 1 See French Formula in Gneist, History of the English Parliament, 163. Sir Matthew Hale, Jurisdiction of Lords; Maitland, op. cit., chap. 72. 3 Gneist, History of the English Parliament, 163. Sir Nicholas Harris Nicholas, Proceedings of the Privy Council, Vol. I, Rich. II to Hen. IV, XXVI. |