Parliaments, such as we now possess, were new things in England. The “concilium,” or great council, which we find in Anglo‐Norman history, was a gathering of earls, barons, and prelates, for the decision, usually, of a simple question—most generally, of granting an aid to the king. All through the long reign of Henry III., the idea that it was necessary occasionally to meet for the purpose of making laws, never once appears in any record. Of course parliaments holding protracted sittings, for weeks or months together, were wholly unthought of. Provision for the residence and maintenance of the prelates and barons would have been difficult. All that was contemplated was, one meeting, to do one thing and then to separate. Very naturally, therefore, Chancellor Burnel, while he had discovered the need of several laws on different subjects, combined his various reforms in one great statute. Lord Campbell observes that, “The ‘Statute of Westminster’ deserves the name of a code, rather than an act of parliament. Its object was, to correct abuses, to supply defects, and to remodel the administration of justice.” * * * “It protects the property of the church from violence and spoliation; it provides for the freedom of popular elections; it contains a strong declaration to enforce the enactments of ‘Magna Charta’ against excessive fines; it enumerates and corrects the great abuses of tenure, particularly with regard to the marriage of wards; it regulates the levying of tolls; it corrects and restrains the power of the king’s escheator, and other officers under the crown; it amends the criminal law; it embraces the subject of procedure, both in civil and criminal matters, introducing many regulations with a view to render it cheaper, more simple, and more expeditious.”
This great measure was in fact the beginning of English legislation. Up to this period, for centuries, the law of England had been a mere tradition, an unwritten collection of rules and principles, handed down from one generation to another, and deposited in the minds and memories of the judges and students of law. Recollections and traditions of Saxon laws, confirmed in “Magna Charta,” doubtless constituted its substance. Such a traditionary code is now of great value, under the name of “common law,” because it is expounded in books, and administered by judges of known integrity. But in the days of which we are speaking, books, i.e., manuscripts, were rare and of great price, and the judges, as a rule, were corruptible. Hence, Burnel, having observed and learned what provisions were chiefly needed, began, in this first of parliaments, to apply the remedy of written and authoritative law. A legislative system, worked by a new power; a real legislature, meeting usually every year, but in some years twice or thrice, began now to be known in England. This legislature, under Edward’s watchful eye, was enlarged and strengthened from time to time, until, before his reign had closed, we find it closely resembling the parliament of our own day—consisting, in 1304, of “the prelates, nine earls, ninety‐four barons, the knights of the shire, and the burgesses sent by 159 towns.”
In the great “Statute of Westminster”—the beginning of our English Statute law—there is one provision which, if the mind dwells upon it, suggests many inquiries. It runs thus:—
“And because elections ought to be free, the king commandeth, upon great forfeiture (i.e., penalties), that no man by force of arms, nor by malice nor menacing, shall disturb (or hinder) any to make free election.”
Almost six hundred years after, in the parliament now sitting, serious and prolonged inquiries have been entered into, as to how “elections can be free,” and how to provide that neither “by force of arms, nor by menace” shall any be hindered from making a free choice or election. Thus, after so many centuries of parliamentary legislation, we find ourselves again trying to effect that which Edward and his great chancellor commanded in the very first law that they placed upon our statute‐book.
But does not the question naturally arise, “What were these elections which Robert Burnel thus saw to need protective legislation?” After all the violence and disorders of such reigns as those of Stephen, Richard, and John, the idea of “a free election” seems a strange one to have existed in this realm of England.
Yet elections there must have been, of two kinds. The Londoners had preserved from days long preceding the Conquest, their “hustings,” both name and thing, and one of the laws in use in the days of Edward the Confessor, fixes the time for holding these meetings.
Henry I., a son of the Conqueror, again recognizes the London hustings and the folk‐motes; and he grants the citizens the right of electing and appointing a sheriff of Middlesex. And in various charters and other records we find traces of elections frequently occurring in the city of London. These elections, too, were liable, as now, to be disturbed by force of arms and menaces. Several of the great barons and prelates had their palaces or castles in or near the city. Baynard’s Castle, in the days of king John, was the stronghold of Robert Fitzwalter, castellan of the city, who doubtless lacked neither the will nor the power greatly “to disturb free elections.” Mobs, too, were frequent and unruly in those days. Fitz‐Albert, called Longbeard, in 1196, had more than fifty thousand of the people at his command, and at last fortified himself in Bow Church, whence he was taken and executed. Still more recently, indeed, just about the time of the holding this parliament of Westminster, a feud broke out in the city, concerning the election of a mayor. The candidate properly chosen was Philip le Taylour, but the mob insisted on having Walter Harvey. The king was obliged to interfere, and to appoint a custos of the city until an election of mayor could be well and properly holden. This fact, occurring very shortly after Edward’s arrival and coronation, of itself explains the insertion of this clause in the statute. Doubtless, also, the elections of “knights of the shire,” an institution which dates from the two preceding reigns, would give occasion to many disorders. The great men of a county would often attempt to carry the election “by force of arms;” the populace would resist;“menacing” would be heard on both sides; and complaints would reach the ear of the king and his chancellor. Now both Edward and his great minister were upright and honourable men. Being therefore engaged in the great work of establishing the dominion of wise and equal laws, they insert in this statute, which, as Lord Campbell says, “rather deserves the name of a code,” this brief but pithy declaration: “And because elections ought to be free, the king commandeth, under great penalties, that no man disturb such elections, either by menaces or by force of arms.”
One other curious circumstance connected with this first parliament of England deserves a mention. Edward always regarded himself as the rightful champion and protector of his people in all just quarrels. The countess of Flanders, in Henry’s old age, had taken the violent course, upon some quarrel, of confiscating all English property in the warehouses of Flanders. Edward on his way home heard of this, and sent immediate orders to stop the export of wool; thus reducing the manufactories of Flanders to a state of paralysis. He then met the son of the countess and concluded a treaty, by which the English merchants received full restitution. This settlement of the quarrel was received in England with great satisfaction, and the parliament of Westminster at once granted to the king a customs’ duty of half a mark on every sack of wool exported, and a mark on every bale of leather. These duties were recorded, in the spirit in which Edward always acted, as “granted by the archbishops, bishops, earls, barons, and communitates of the kingdom of England.” Always and on all occasions does the king associate with himself in public acts, “the commonalty of the realm, the lowest as well as the highest.”