Thus far the Lords are auditors. But petitions to the King, for the objects for which the assent or authority of Parliament was necessary, were answered by "the King and the Lords in Parliament." In the closing years of the fourteenth century we find the Lords in Parliament overshadowing in some matters the executive right of the King in Council. Another side of this is to be found in the action of the Commons. Since the time of Edward I, in more important cases, ordinances for the redress of grievances had been issued constitutionally by the King in Council with the assent of the Prelates and Barons in the Great Council. Soon a formal mention of the consent of the Commons was made, as was done repeatedly under Edward II.

The turning-point is found in the long reign of Edward III, beset with money difficulties which compelled him to summon full Parliaments no less than seventy times. The writs to the Knights and Burgesses at this time, we have seen, began to read "ad consentiendum." This was the king's order to the Commons. Their reply began to be, "We won't consent until redress is given for our grievances." The principle began to be recognized that "redress precedes supply." The Commons now took the initiative. In the preambles to legal enactments, the usual style now draws a distinction between proposal and concurrence; the king orders on the proposal of the Commonwealth and consent of the Lords and Prelates. Very soon, also, the Lords began to lose their position as a check on the initiative of the Commons, for, in 5 Richard II, 1382, the express recognition

"1

1 Medley, 216; Gneist, History of the English Parliament, 168.

was made of the full right of assent by the Commons. From this moment we have real legislation, and its extension and development from the right of petition is clear. This legislation, moreover, produced statutes, as distinct from the ordinances of the king. Even as early as 1322, the attempts of the barons under Edward II to issue ordinances had resulted in the enunciation of the principle that legislative authority was vested "in the King, with the assent of the Prelates, Earls, Barons, and Commons, assembled in Parliament." In 14 Edward III, 1341, a number of Prelates, Barons, and Councillors, besides twelve Knights and six Burgesses, were already nominated to prepare and reduce to proper form such petitions and decisions as might appear suitable for future ordinances. But in 51 Edward III, the final stroke was made when a petition was recognized containing the fundamental principle that statutes made in Parliament can be annulled only with the consent of Parliament. Again, under Richard II, a representation is made by the Commons (1390) that after the closing of the Parliament, neither the Chancellor, nor the King's Council, can issue any ordinance contrary to the common law of the land, or in opposition to statutes issued or to be issued in Parliament.

§ 11. TAXATION. - All that can be said about taxation has already been suggested. In the Parliament Roll of 1305 nothing is said about the laying of taxes in that year. Yet petitions were received from "the Bishops, Abbots, Earls, Barons, and others of the realm," praying that whereas military service had been rendered, they might take scutage from their tenants: others, complaining that, although service

had been done, scutage was being collected for all their fees; still others, praying that, since the king had tallaged his demesne lands, they might be permitted to tallage those parts of the ancient demesne which were in their hands. The answer was “fiat ut petitur"; yet the petition was the only way by which they could get their rights.'

This shows us the attempts of the Lords to recoup themselves for taxes paid to the king or services rendered. The complete history of the other side, the attempts of the king to raise money, would lead far. The gist is that each class tried to evade burdens as much as possible, and when the payment was inevitable, to get as much in return from the king as possible in the way of reform.' Taxation soon began to assume the form of a bargain between organized interests and the king. The knights of the shire and the merchants represented the landed interest and the towns; the Lords represented the greater interests of the tenants in chief. We find on the one hand all classes setting off redress of grievances against supply of money. Yet we soon find a conflict of interests at one time, and at another the combination of all to protect themselves against the connivance of the king with any one class. Thus, in 1362, the Commons obtained a statute to the effect that neither merchants nor any other body should henceforth set any subsidy or charge upon wool without consent of Parliament." What interests us, then, is to see how the different.

3

1 Maitland, Memorandum de Parliamento, IV.

2 Stubbs, Constitutional History, ed. 1884, Vol. III, p. 475. See Stubbs, Constitutional History, ed. 1875, Vol. II, 518-531. • Medley, 211.

classes grouped themselves in the common and conflicting efforts to regulate taxation.

In the early fourteenth century, it was the custom for the several tax-paying groups to signify their assent separately, the Barons representing their manors and the towns under their protection; the Clergy for their possessions; the Knights for themselves and their freemen; and the towns for their communitates. But when the estates grew stronger, and, as under Edward II, they could insist upon grants being used for certain purposes and on certain occasions, all the groups would act together.

"The process of granting supplies thereby assumed a form similar to that of the exercise of the legislative function. "1 The imposing of taxes began to change from a 'free gift' to a 'contractual surrender.' In 1378, the new relation was so far settled, that a Magnum Concilium of Prelates and Barons pronounced itself absolutely incompetent to give any assent to taxes without the

'After a date at which the two houses began to make their grants on one plan, ceasing to vote their money independently, the money grant took a more definite form. From the end of Richard II's reign all grants were made by the Commons with the advice and consent of the Lords in documentary form which may be termed an Act of Parliament." "

Although full evidence is wanting, we may assume that before the end of the fourteenth century, the procedure upon the imposition of taxes was, in its

1 Gneist, History of the English Parliament, 161.
2 Ibid.

'Stubbs, Constitutional History, ed. 1884, III, 475.

broad outlines, similar to the procedure on money bills at the present day.

§ 12. JUDICIAL FUNCTIONS. - The same transfer is seen of judicial functions. These are three. The House of Lords is the supreme court of appeal from the courts of common law and from the equity courts. As such, it is the successor to the functions of the King's Council. In cases of impeachment, the Commons act as accusers, the Lords as judges. They have original jurisdiction in trying a member of the House for treason or felony. That nothing concerning the whole nation was allowed to be decided by any but the representative branch or the law courts is plain. Ever since the invention of the system of writs of Henry II, judicature had found its way into the King's courts. Of these there were two, the court de banco and the court coram rege, which, as the term suggests, was always near the person of the King. At times the Justices of the King's Bench (as we may call this court), who were also members of the Council, could and did summon Prelates and Barons, and a case is thus heard at a full meeting, a parliament of the Council. Thus a plea may be adjourned from a parliament to the King's Bench or from the King's Bench to the Parliament without a breach of continuity. This highest tribunal, however, is not yet a general assembly of the Prelates and Barons, but the King's Council. Later, when the Common Council had acquired a voice in the regulation of every department of government, the magnates began to have a corporate existence with more or less definite rights,

Feilden, A Short History of England, 109, 110, 118, 139. ' Memorandum de Parliamento, 1305, LXXVI, LXXXVIII.