happily expresses at once the theory of the earlier AngloSaxon Constitution, and, as interpreted by the system of representation, both the theory and the practice of the English Constitution from the days of the 'greatest of the Plantagenets' to our own. In its beneficent influence upon the development of constitutionalism this maxim of Roman law may be regarded as an antidote to its more famous fellow-maxim, quod principi placuit legis habet vigorem, which, in the mouths of the mediæval jurists, did so much to build up the despotic power of the kingly office. Besides the ordinary summons to the lay and spiritual baronage, writs were issued to the sheriffs ordering the election and return of two knights from each county, two citizens from each city, and two burgesses from each borough, ad faciendum quod tunc de communi consilio ordinabitur in praemissis. But together with the knights and burgesses, the whole inferior clergy, by their representaParliament tives under the praemunientes clause, were now for the first

Inferior

clergy represented in

under the praemunientes clause.

seems to have been familiarly known in England; cf. Matt. Paris (anno 1251) p. 815: quod enim omnes angit et tangit ab omnibus debet trutinari;' and the Vita Edwardi II. (ed. Hearne), p. III. Stubbs, Const. Hist. ii. 128.

1 The whole preamble of the writs to the archbishops and bishops is remarkable. Sicut lex justissima, provida circumspectione sacrorum principum stabilitata, hortatur et statuit ut quod omnes tangit ab omnibus approbetur, sic et nimis evidenter ut communibus periculis per remedia provisa communiter obvietur. Sane satis noscis et jam est, ut credimus, per universa mundi climata divulgatum, qualiter rex Franciae de terra nostra Vasconiae nos fraudulenter et cautelose decepit, eam nobis nequiter detinendo. Nunc vero praedictis fraude et nequitia non contentus, ad expugnationem regni nostri classe maxima et bellatorum copiosa multitudine congregatis, cum quibus regnum nostrum et regni ejusdem incolas hostiliter jam invasit, linguam Anglicam, si conceptae iniquitatis proposito detestabili potestas correspondeat, quod Deus avertat, omnino de terra delere proponat. Quia igitur praevisa jacula minus laedunt, et res vestra maxime, sicut ceterorum regni ejusdem concivium, agitur in hac parte, vobis mandamus,' &c. The preamble of the writs to the lay baronage is more concise: "Quia super remediis contra pericula quae toti regno nostro hiis diebus imminent providendum vobiscum et cum ceteris regni nostri proceribus habere volumus colloquium et tractatum.' The writs to the sheriffs are very similar: Quia cum comitibus, baronibus et ceteris proceribus regni nostri, super remediis contra pericula quae eidem regno hiis diebus imminent providendum, colloquium habere volumus et tractatum.’ The elected knights, citizens, and burgesses are directed to attend 'plenam et sufficientem potestatem pro se et communitate comitatus, civitatum et burgorum praedictorum divisim ab ipsis tunc ibidem habentes. . . ita quod pro defectu hujusmodi potestatis negotium praedictum infectum non remaneat quoquo modo.'-Rep. on Dignity of a Peer, App. i. 66, 67.

2 [The limitation of this maxim supplied by Gaius in the words following, quia ipse per legem imperium accessit, seems to be generally overlooked.- ED.]

time united with the assembled baronage in the national Parliament. In the writs addressed to the Archbishops of Canterbury and York, each was directed not only to be present at the Parliament, but also premonished to cause the prior [Dean] of his cathedral and the archdeacons of his diocese to attend in person, and the chapter of the cathedral and the parochial clergy by their representative proctors. This great assembly, the most general which had ever yet been held, did not form a single body. The aid was discussed and voted by each of the three bodies separately. Each made a different proportional grant. The barons and knights gave the King one-eleventh of their moveables; the burgesses one-seventh; the clergy only one-tenth.

The summons to Parliament of representatives of the inferior clergy was due, like that of the citizens and burgesses, to the pecuniary necessities of the King, controlled by the principle expressed in the maxim, 'what touches all should be approved by all,' that taxation could only be legally imposed with the consent of the taxed. It was doubtless the intention of Edward's legal and systematic mind to make the representatives of the clergy an effective branch of a comprehensive national Parliament. But this design was defeated by the action of the clergy themselves. Averse, by the nature of their calling, from interfering in The clergy the ordinary subjects of secular legislation, despising as interfering barbarous the system of Common Law, and desirous of in secular keeping themselves as a privileged class apart from the body of the people, they unwillingly obeyed a summons the primary object of which they well knew was to get from them as much money as possible. The clergy, more

1 Report on Dignity of a Peer, App. i. 66, 67. There were summoned to this Parliament eight earls, forty-one barons, the two archbishops and the bishops, sixty-seven abbots, the Masters of the Temple and of Sempringham and the Prior of the Hospital of St. John of Jerusalem, the prior [Dean] and archdeacons of the dioceses of Canterbury and of York, one proctor from the chapter of each cathedral, and two proctors from the parochial clergy of each diocese, two knights from each county, and two citizens or burgesses from each city or borough in every shire.

averse from

legislation.

Convoca

tion.

The clergy

cease to

attend Par

liament in the 14th century.

over, had long possessed their own peculiar assembly or Convocation which, carlier in the reign of Edward I., had already been remodelled upon the representative basis.1 In this assembly, sitting in two Provincial divisions, at London and York, they preferred to grant their aids; and, although regularly summoned to Parliament, under the praemunientes clause, their attendance was always reluctant and intermittent, and in the fourteenth century ceased altogether. But whether in Convocation or in Parliament, they certainly formed a legislative council in ecclesiastical matters, by the advice and consent of which alone, without that of the Commons (I can say nothing as to the Lords), Edward III., and even Richard II., enacted laws to bind the laity.'2 But preserve For two hundred years after they had ceased to attend the power of self-taxation Parliament, the clergy retained the strictly parliamentary function of taxing themselves in Convocation. But from the reign of Henry VIII., when the Reformed Church, which in its national aspect was itself the creation of Parliament, was placed in strict subordination to the State, the subsidies granted in Convocation were henceforward always confirmed by Act of Parliament. At length, in 1664, the practice of ecclesiastical taxation was discontinued, without the enactment of any special law, and the clergy, being henceforth taxed at the same rate and in the same manner with the laity, assumed and have ever since enjoyed the right of voting in respect of their ecclesiastical freeholds, in the election of members of the House of Commons.4

till 1664.

3

1 See the series of summonses to Convocation, 1225-1227, in Stubbs, Select Chart. 442, and the Introductory Sketch, p. 38.

2 Hallam, Midd. Ages, iii. 137. The celebrated statute De Haeretico Comburendo, 2 Hen. IV. c. 15, A.D. 1401, was enacted on the petition of the clergy alone, and is expressed as being made by the consent of the Lords but without mention of the Commons.

3 By 25 Hen. VIII., c. 19, Convocation was forbidden to [enact constitutions or Canons] without the King's licence.-See [Statutes, Rev. i. 416]. [On Convocation generally, see Joyce, England's Sacred Synods, 1855; Montagu Burrows, Parliament and the Ch. of Eng., 1875; Dixon, Hist. of Church of England, 1881-5.-Ed.]

The taxation of the clergy out of Convocation was termed [by Bp. Gibson] the greatest alteration in the constitution ever made without an express law.' It was settled by a mere verbal agreement between Archbishop Sheldon and the Lord Chancellor Clarendon. --See Hallam, Const. Hist. iii. 240, 241.

separate

realm.

Thus, whilst theoretically the political constituents of the The clergy nation are the King, and the three estates of the realm, the not now a Lords, the Clergy, and the Commons, practically there are estate of the and have been for centuries but two estates, the Lords and Commons. The clergy are now a separate estate only by a political and legal fiction. In fact they are amalgamated with the two continuing estates, and are represented in the Lords by the bishops, in the Commons by the members of that House, who are elected by all qualified persons, whether clerical or lay, below the rank of peerage.

established

Ever since the year 1295 (23rd Edward I.) Parliaments Government after the model of Simon de Montfort's famous assembly Lords and by King, have been regularly summoned in continuous, or all but Commons continuous, succession. The essential basis of the English under constitution, government by King, Lords, and Commons, Edward I. may thus be said to have been definitely fixed in the reign of the great Edward. To the same period we must also And the right of assign the full and complete acknowledgment of the arbitrary most important-because the practical mainspring of every taxation other-power of Parliament. It was long before the King would surrender the right of taking talliages without a Events leadparliamentary grant. In order to carry on his extensive ing to the Confirmatio wars he was in constant need of large sums of money, Chartarum. which he raised by arbitrary exactions from all classes of his subjects, lay and clerical. In vain did the clergy

surrendered.

endeavour to shelter themselves under the Bull of Boniface Exactions from the

1 'It was by Edward I. that the bases were settled upon which the English constitution rests. With marvellous sagacity he comprehended the purport of every true thought which was floating on the surface of the age in which he lived. Perhaps no man, excepting Cromwell, possessed of equal capacity for government, ever showed less inclination to exercise arbitrary rule. He knew how to mould his subjects to his own wise will, not by crushing them into unwilling obedience, but by inspiring them with noble thoughts. When he first reached man's estate he found his countrymen ready to rush headlong into civil war. When he died, he left England free as ever, but welded together into a compact and harmonious body. There was work enough left for future generations to do, but their work would consist merely in filling in the details of the outline which had been drawn once for all by a steady hand.'-Gardiner, Hist. Eng. i. 16.

2 [Dowell, Hist. of Taxation, i. 66, gives 1332 as the date of the last attempt at a tallage.-ED.]

clergy.

Laicos.

A. D. 1296.

Bull Clericis VIII., Clericis laicos (24th of February, 1296), which absolutely forbade, under pain of excommunication, the payment to laymen of any tax whatever on the revenues of the Church. The practical outlawry of the whole clerical body (30th January, 1297), and the temporary confiscation of the estates of the see of Canterbury (12th February, 1297), compelled the clergy to abandon their untenable position,1 [and to yield per se, or per mediatores.]

Exactions from the merchants,

Whilst the clergy were exasperated by these violent proceedings, the merchants were equally aggrieved by the by seizure of heavy impositions placed on the export of their wool, and

their wool

and the

'maltolte.'

by the actual seizure of the greater part of it, for which payment was nominally given by tallies upon the Exchequer. Large quantities of provisions were, in the same manner, exacted from the men of each county for the King's expedition to Flanders, and, in the words of the old chronicler, multae fiebant oppressiones in populo Infractions terrae. The baronage also were irritated by the King's of Magna Charta. open disregard of many of the Charter and the Charter of the

Foreign ser- persistently refused to confirm.

vice.

provisions of the Great Forest, both of which he They had, moreover, a

personal grievance in the King's demand of foreign service, which they alleged that neither they nor their ancestors A.D. 1297. had ever been liable to perform.3 On the 24th of February Edward held what was styled a 'Parliament,' but to which only the lay baronage, without any clergy or representatives of the Commons, was summoned. He here proposed that the barons should go to Gascony, while he himself proceeded to Flanders. On their refusal, he threatened to take away their lands and give them to those who would go. This led to a personal altercation with Roger Bigod, Earl of Norfolk, the Marshal of England, which ended in

1 Ann. Trivet. p. 353, A.D. 1297.

2 Walt. de Hemingburgh, ii. 120, A.D. 1297.

3 W. Rishanger, Chron. 175, A.D. 1297. [Petitiones Communitatis.]

4 Cf. the refusal of foreign service by St. Hugh of Lincoln in 1198 (supra, p. 98), and by the barons of King John (supra, p. 104).

5 The altercation is graphically described by Walter de Hemingburgh (ii. 121): 'Comes etiam Herefordensis et comes marescallus excusaverunt se, dicentes