The Governments of Europe

by Frederic Austin Ogg

No instrument in the annals of any nation exceeds in importance the Great Charter. The whole of English constitutional history, once remarked Bishop Stubbs, is but one long commentary upon it. The significance of the Charter arises not simply from the fact that it was wrested from an unwilling sovereign by concerted action of the various orders of society (action such as in France and other continental countries never, in mediæval times, became possible), but principally from the remarkable summary which it embodies of the fundamental principles of English government in so far as those principles had ripened by the thirteenth century. The Charter contained little or nothing that was new. Its authors, the barons, sought merely to gather up within a reasonably brief document those principles and customs which the better kings of England had been wont to observe, but which in the evil days of Richard and John had been persistently evaded. There was no thought of a new form of government, or of a new code of laws, but rather of the redress of present and practical grievances. Not a new constitution, but good government in conformity with the old one, was the essential object. Naturally enough, therefore, the instrument was based, in most of its important provisions, upon the charter granted by Henry I. in 1100, even as that instrument was based, in the main, upon the righteous laws of Edward the Confessor. After like manner, the Charter of 1215 became, in its turn, the foundation to which reassertions of constitutional liberty in subsequent times were apt to return; and, under greater or lesser pressure, the Charter itself was "confirmed" by numerous sovereigns who proved themselves none too much disposed to observe its principles.

In effect the Charter was a treaty between the king and his dissatisfied subjects. It was essentially a feudal document, and the majority of its provisions relate primarily to the privileges and rights of the barons. None the less, it contains clauses that affected all classes of society, and it is especially noteworthy that the barons and clergy pledged themselves in it to extend to their dependents the same customs and liberties which they were themselves demanding of the crown. Taking the Charter as a whole, it guaranteed the freedom of the Church, defined afresh and in precise terms surviving feudal incidents and customs, placed safeguards about the liberties of the boroughs, pledged security of property and of trade, and stipulated important regulations respecting government and law, notably that whenever the king should propose the assessment of scutages or of unusual aids he should take the advice of the General Council, composed of the tenants-in-chief summoned individually in the case of the greater ones and through the sheriffs in the case of those of lesser importance. Certain general clauses, e.g., that pledging that justice should neither be bought nor sold, and that prescribing that a freeman might not be imprisoned, outlawed, or dispossessed of his property save by the judgment of his peers or by the law of the land, meant in effect considerably less than they sometimes have been interpreted to mean.[11] Yet even they served to emphasize the fundamental principle upon which the political and legal structure was intended to be grounded, that, namely, of impartial and unvarying justice.[12]

IV. The Rise of Parliament

11. Beginnings of the Representative Principle.—The thirteenth century was clearly one of the most important periods in the growth of the English constitution. It was marked not merely by the contest which culminated in the grant of the Great Charter but also by the beginnings, in its essentials, of Parliament. The formative epoch in the history of Parliament may be said to have been, more precisely, the second half of the reign of Henry III. (1216-1272), together with the reign of the legislator-king Edward I. (1272-1307). The creation of Parliament as we know it came about through the signal enlargement of the Norman-Plantagenet Great Council by the introduction of representative elements, followed by the splitting of the heterogeneous mass of members definitely into two co-ordinate chambers. The representative principle was in England no new thing in the thirteenth century. As has appeared, there were important manifestations of it in the local governmental system of Anglo-Saxon times. As brought to bear in the development of Parliament, however, the principle is generally understood to have sprung from the twelfth-century practice of electing assessors to fix the value of real and personal property for purposes of taxation, and of jurors to present criminal matters before the king's justices. Thus, Henry II.'s Saladin Tithe of 1188—the first national imposition upon incomes and movable property—was assessed, at least in part, by juries of neighbors elected by, and in a sense representative of, the taxpayers of the various parishes. By the opening of the thirteenth century the idea was fast taking hold upon the minds of Englishmen, not only that the taxpayer ought to have a voice in the levying of taxes, but that between representation and taxation there was a certain natural and inevitable connection. In the Great Charter, as has been stated, it was stipulated that in the assessment of scutages and of all save the three commonly recognized feudal aids the king should seek the advice of the General Council. The General Council of the earlier thirteenth century was not regularly a representative body, but it was not beyond the range of possibility to impart to it a representative character, and in point of fact that is precisely what was done. To facilitate the process of taxation it was found expedient by the central authorities to carry over into the domain of national affairs that principle of popular representation which already was doing approved service within the sphere of local justice and finance, and from this adaptation arose, step by step, the conversion of the old gathering of feudal magnates into a national parliamentary assembly.

12. Early Parliaments.—The means by which the transformation was accomplished consisted in the first instance, as has been said, in the introduction into the Council of new and representative elements. The earliest step in this direction was taken in 1213, when King John, harassed by fiscal and political difficulties, addressed to the sheriffs a series of writs commanding that four discreet knights from every county be sent to participate in a deliberative council to be held at Oxford. The practice took root slowly. In 1254 Henry III., in sore need of money for the prosecution of his wars in Gascony, required of the sheriffs that two knights be sent from each county to confer with the barons and clergy relative to the subsidies which should be accorded the crown. The desired vote of supplies was refused and the long-brewing contest between the king and the barons broke in civil war. But during the struggle that ensued the foundations of Parliament were still more securely laid. Following the king's defeat at Lewes, in 1264, Simon de Montfort, leader of the barons, convened a parliament composed of not only barons and clergy but also four knights from each shire, and at London during the following year, he caused again to be assembled, in addition to five earls, eighteen barons, and a large body of clergy, two knights from each of the several shires and two burgesses from each of twenty-one towns known to be friendly to the barons' cause. These proceedings were essentially revolutionary and unauthorized. Even the gathering of 1265, as Stubbs remarks, presented the appearance largely of a party convention, and there is no evidence that its author intended such a body to be regularly or frequently summoned, or even summoned a second time at all. None the less, now for the first time representatives of the towns were brought into political co-operation with the barons, clergy, and knights; and the circumstance was filled with promise. During the ensuing thirty years there were several "parliaments," although the extent to which knights and burgesses participated in them is uncertain. The period was one of experimentation. In 1273 four knights from each shire and four citizens from each town joined the magnates in taking the oath of fealty to the new and absent sovereign, Edward I. The First Statute of Westminster, in 1275, declares itself to have been adopted with the assent of the "commonalty of the realm." In 1283 a parliament was held which almost precisely duplicated that of 1265. In 1290, and again in 1294, there was one, in which, however, representation of the towns was omitted.

The gathering which served to fix the type for all time to come was Edward I.'s so-called Model Parliament of 1295. To this parliament the king summoned severally the two archbishops, all of the bishops, the greater abbots, and the more important earls and barons; while every sheriff was enjoined to see that two knights were chosen from each shire, two citizens from each city, and two burgesses from each borough. Each bishop was authorized, furthermore, to bring with him his prior or the dean of the cathedral chapter, the archdeacons of his diocese, one proctor or agent for his cathedral chapter, and two of his diocesan clergy. In the parliament as actually convened there were 2 archbishops, 18 bishops with their lesser clergy, 66 abbots, 3 heads of religious orders, 9 earls, 41 barons, 63 knights of the shire, and 172 representatives of the cities and boroughs—an aggregate of approximately 400 persons. There were thus present in the assemblage, in person or by deputy, all of the constituent orders of English society, and the irregular device of Simon de Montfort was vested at last with the character of legality. After Edward I. Parliament may be said to have been an established institution of the realm. Its meetings long continued intermittent and infrequent, and its powers from time to time varied enormously, but the place which it filled in the economy of the nation grew ever more important.

13. Establishment of the Bicameral System.—Like its counterpart in France, the Estates-General, the English Parliament comprised the three great estates or orders—nobility, clergy, and commons—of which, aside from the peasantry, mediæval society in all western European countries was composed. In the working out of its internal structure, however, two chambers resulted, rather than, as in France, three. Originally the three estates sat separately. Their primary business was the voting of supplies and, the principle being that a tax ought to be conceded by those who would be called upon to pay it, the natural course was for the lords to grant their scutages and aids, the commoners their tenths and fifteenths, and the clergy their subsidies, apart. Indeed there is reason to believe that at times even the knights and the burgesses deliberated separately. Gradually, however, there appeared certain affiliations of interest which operated to modify the original practice. In the first place, the lesser clergy, inconvenienced by attendance and preferring to vote their contributions in the special ecclesiastical assemblages known as the convocations of Canterbury and York, contrived to throw off entirely their obligation of membership. The greater clergy and the greater barons, in the next place, developed sufficiently large interests in common to be amalgamated with ease in one body. Similarly, the lesser barons found their interests essentially identical with those of the country freeholders, represented by the knights of the shire, and with those of the burgesses. The upshot was a gradual alignment of the aggregate membership in two great groups, the one of which became historically the House of Lords, the other the House of Commons. At the beginning of the reign of Edward III. (1327-1377) the three estates still sat separately, but before the close of this period the bicameral arrangement seems definitely to have been established. There is no evidence that at any stage of their history the three groups ever sat as a single body. It need hardly be emphasized that the entire course of English history since the fourteenth century has been affected profoundly by the fact that the national assembly took the form of two houses rather than of one, as did the Scotch, of three as did the French, or of four as did the Swedish. But for the withdrawal of the lesser clergy, the number might very possibly have been three.

14. Powers of Finance and Legislation.—Structurally, the English Parliament is a creation of the Middle Ages; politically, it is a product of modern times, and, in no small measure, of the past hundred years. Before the close of the Middle Ages, however, it had acquired a sum total of authority which at least gave promise of its development into a great co-ordinate, if not a preponderating, power in the state. In the first place, it had forced the establishment of the twin principles of public finance (1) that the right to levy taxes of every sort lay within its hands and (2) that the crown might impose no direct tax without its assent, nor any indirect tax save such as might be justified under the customs recognized in Magna Carta. When Edward I. confirmed the Charter, in 1297, he agreed that no tallages or aids should thereafter be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land. A statute of 1340 reiterated the principle still more specifically. In 1395 appeared the formula employed to this day in the making of parliamentary grants, "by the Commons with the advice and assent of the Lords Spiritual and Temporal." And in 1407 Henry IV. extended the royal approval to the principle that money grants should be initiated in the Commons, assented to by the Lords, and only thereafter reported to the king. For the ancient theory of taxation by estates was substituted, slowly but inevitably, the modern doctrine of the fiscal pre-eminence of the Commons.

The second point at which Parliament made decisive advance before the close of the mediæval period was in respect to powers of ordinary legislation. Originally, Parliament was not conceived of as, in the strict sense, a law-making body at all. The magnates who composed the General Council had exercised the right to advise the crown in legislative matters, and their successors in Parliament continued to do the same, but the commoners who in the thirteenth century were brought in were present, in theory, for fiscal rather than legislative purposes. The distinction, however, was difficult to maintain, and with the continued growth of the parliamentary body the legislative character was recognized eventually to be inherent in the whole of it. At the opening of the fourteenth century laws were made, technically, by the king with the assent of the magnates at the request of the commoners. The knights and burgesses were recognized as petitioners for laws, rather than as legislators. They could ask for the enactment of a statute, or for a clearer definition of law, but it was for the king and his councillors to determine finally whether legislation was required and what form it should assume. Even when a law which was requested was promised it not infrequently happened that the intent of the Commons was thwarted, for the text of the measure was not drawn up, normally, until after the parliament was dissolved, both form and content were determined arbitrarily by the crown and council, and between petition and statute there might be, and often was, gross discrepancy.

15. Development of the Legislative Process.—By a memorable statute of 1322, in the reign of Edward II., it was stipulated that "the matters which are to be established for the estate of our lord the king and of his heirs, and for the estate of the realm and of the people, shall be treated, accorded, and established in parliaments, by our lord the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm; according as it hath been before accustomed."[13] This declaration is understood to have established, not only the essentially legislative character of Parliament, but the legislative parity of the commoners with the magnates. It remained, however, to substitute for the right of petition the right of legislating by bill. Throughout the fourteenth century Parliament, and especially the Commons, pressed for an explicit recognition of the principle that the statute in its final form should be identical with the petition upon which it was based. In 1414 Henry V. granted that "from henceforth nothing be enacted to the petitions of his commons that be contrary to their asking, whereby they should be bound without their assent."[14] The promise tended in practice to be evaded, and late in the reign of Henry VI. there was brought about an alteration of procedure in accordance with which measures were henceforth to be introduced in either house, in the form of drafted bills. The legislative process was now essentially reversed. The right of initiative was secured to the Commons, concurrently with the Lords; the crown was restricted to a right of veto or assent. The change in procedure was reflected in a change of formula. Statutes began to be made "by the King's most excellent majesty by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same." And these words comprise the formula with which every act of Parliament to-day begins. Technically, the laws were, and are still, made by the crown; practically Parliament, once merely a petitioning and advising body, had become a full-fledged legislative assemblage.