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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." 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." 2 This rule, however, was frequently violated; and late in the reign of Henry VI (1422-61) a change of procedure was brought about under which measures were henceforth to be introduced in either house in the form of drafted bills. Statutes now 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 every act of Parliament begins with these words today unless passed under the terms of the Parliament Act of 1911, in which case mention of the Lords is omitted. Once merely a petitioning and advising body, Parliament had become a fullfledged legislative assemblage.3

The Permanent Council and the Courts of Law. This transformation of the Norman Great Council into the semi

1 Adams and Stephens, Select Documents, 97. 2 Ibid., 182.

On the rise of Parliament see Stubbs, Constitutional History of England, II, Chaps. xv, xvii; Tavlor, Origins and Growth of the English Constitution, I, 428-616; G. B. Smith, History of the English Parliament (London, 1892), I, Bks. 2-4; White, Making of the English Constitution, 298-401; D. J. Medley, Students' Manual of English Constitutional History (2d ed., Oxford, 1898), 127-150; Tout, History of England from the Accession of Henry III to the Death of Edward III, Chaps. v, vi, X. Valuable biographical treatises are G. W. Prothero, Life of Simon de Montfort (London, 1877); E. Jenks, Edward Plantagenet [Edward I], the English Justinian (New York, 1902); and T. F. Tout, Edward the First (London, 1906). The growth of parliamentary powers in the fourteenth and fifteenth centuries is briefly but adequately described in Adams, Outline Sketch of English Constitutional History, Chap. iii. The development of financial powers to 1689 is traced in S. A. Morgan, History of Parliamentary Taxation in England (New York, 1911). See also A. B. White, "Was there a 'Common Council' before Parliament?" in Amer. Hist. Rev., Oct., 1919.

aristocratic, semi-popular assemblage known as Parliament went far toward laying the foundations of the English governmental system of to-day. A parallel development was the emergence, also from the Great Council, of a body designated after the thirteenth century as the Permanent, after the fifteenth as the Privy, Council, and likewise of the four principal courts of law. By a very gradual process those members of the original Council who were immediately attached to the court or to the administrative system acquired a status different from that of their colleagues. The Great Council met irregularly and infrequently. So likewise did Parliament. But the services of the court and the business of government must go on continuously, and for the care of these things there grew up a body which at first formed a sort of standing commission, or inner circle, of the Council, but which in time acquired a practically independent position and was designated, for purposes of distinction, as the Permanent Council. The composition of this body changed from time to time. Certain functionaries were regularly included; the remaining members owed their places to special summons of the crown. The new Council's powers were enormous, being at the same time administrative, judicial, and financial, and the mass of business to which it was required to give attention steadily grew.

Three things resulted. In the first place, the Permanent Council became, in practice, completely detached from the older and larger body. In the second place, to facilitate its work trained lawyers, expert financiers, and other men of special aptitudes-men, often, who were mere commoners were introduced into it. Finally, there split off from the body a succession of committees, to each of which was assigned a particular branch of administrative or judicial business. In this manner arose the four great courts of law: (1) the Court of Exchequer, which was given jurisdiction over all fiscal causes in which the crown was directly concerned; (2) the Court of Common Pleas, with jurisdiction over civil cases between subject and subject; (3) the Court of King's Bench, presided over nominally by the king himself and taking cognizance of a variety of cases for which other provision was not made; and (4) the Court of Chancery, which, under the presidency of the Chancellor, heard and decided cases involving the principles of equity. The creation of these tribunals, beginning in the early twelfth century, was completed by the middle of the fourteenth. Technically, all were coördinate courts, from which appeal lay to the

King in Council; and there are still, as will be pointed out, certain survivals of the judicial prerogative which the Council as a whole thus retained. By the time of Henry VI the enlargement of membership and the specialization of functions of the Permanent Council had gone so far that this group, too, had entirely ceased to be a working body. Ultimately, what happened was that, precisely as the Permanent Council had been derived by selection from the original Great Council, so from the overgrown Permanent Council was segregated, in the fifteenth century, a smaller and more compact administrative body known to historians as the "Privy Council." By curious repetition, when, in the seventeenth and eighteenth centuries, this Privy Council became too large for practical use, an inner circle was, in turn, detached from it and, under the name of the Cabinet, was put in the way of becoming the working executive of the realm.2

1

1 See Stubbs, Constitutional History, II, Chap. xiii; White, Making of the English Constitution, 123-251; Adams, Origin of the English Constitution, 136-143; W. S. Holdsworth, History of English Law (London, 1903-09), I, 1–169; J. F. Baldwin, The King's Council in England during the Middle Ages (New York, 1913); A. P. Poley, "Development of the Privy Council," in Britan. Rev., Jan., 1916.

2 See p. 93.

CHAPTER II

THE CONSTITUTION IN RECONSTRUCTION, 1485-1689

The Tudor Monarchy. The salient fact of the Tudor period of English history (1485-1603) is the vigor and dominance of the monarchy. From the long and dreary Wars of the Roses the nation emerged in need, above all else, of discipline and repose. It was the part of the Tudors relentlessly to enforce the one and systematically to foster the other. The period was one in which aristocratic turbulence was repressed, extraordinary tribunals were erected to bring to justice powerful offenders, vagrancy was punished, labor was found for the unemployed, trade was stimulated, the navy was organized on a permanent basis, the diffusion of wealth and of education was encouraged, the growth of a strong middle class was promoted in short, one in which out of chaos was brought order and out of weakness strength. These things were the work of a government which was frankly paternal, even boldly despotic, and for a time. the evolution of parliamentary institutions was arrested. But it should be observed that the question in sixteenth-century England was not between strong monarchy on the one hand and parliamentary government on the other. The alternatives were, rather, strong monarchy and baronial anarchy. This the nation clearly perceived, and, of the two, it preferred the former. "The Tudor monarchy," says an English scholar, "unlike most other despotisms, did not depend on gold or force, on the possession of vast estates, unlimited taxation, or a standing army. It rested on the willing support of the nation at large, a support due to the deeply rooted conviction that a strong executive was necessary to the national unity, and that, in the face of the dangers which threatened the country both at home and abroad, the sovereign must be allowed a free hand. It was this conviction, instinctively felt rather than definitely realized, which enabled Henry VIII not only to crush open rebellion but to punish the slightest signs of opposition to his will, to regulate the consciences of his subjects, and to extend the legal conception

of treason to limits hitherto unknown. It was this which rendered it possible for the ministers of Edward VI to impose a Protestant régime upon a Romanist majority, and allowed Mary to enter upon a hateful marriage and to drag the country into a disastrous war. It was this, finally, which enabled Elizabeth to choose her own line in domestic and foreign policy, to defer for thirty years the war with Spain, and to resist, almost singlehanded, the pressure for further ecclesiastical change. The Tudor monarchy was essentially a national monarchy. It was popular with the multitude, and it was actively supported by the influential classes, the nobility, the gentry, the lawyers, the merchants, who sat as members of Parliament at Westminster, mustered the forces of the shire as Lords-Lieutenant, or bore the burden of local government as borough magistrates and justices of the peace.

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Government by Council. The times of the Tudors and of the early Stuarts have been aptly designated the period of government by council." Parliament continued to exercise a certain control over legislation and taxation, but it was in and through the Privy Council, together with certain subordinate councils, that the absolute monarchy in the main performed its work. The Privy Council - or simply "the Council" ordinarily included seventeen or eighteen persons, although under Henry VIII its membership approached forty. The councilors were usually members of Parliament, and this made easier the control of the proceedings of that body by the government, without as yet involving any admitted responsibility of the executive to the legislative branch. After Mary's reign the councilors were, with few exceptions, laymen. Technically, the function of the Council was only to give advice. But in practice, even those sovereigns, notably Henry VIII and Elizabeth, who were most vigilant and industrious, were obliged to allow the councilors large discretion in the conduct of public business, and under the early Stuarts the Council practically ruled the realm. It supervised administration, regulated trade, granted licenses, controlled the press, kept an eye on the law courts, ferreted out plots, suppressed rebellion, controlled the movements of the fleet, assisted in the management of ecclesiastical affairs, and, in short, discussed, and took action on, substantially all concerns of state. Its right to issue ordinances in the name of the crown made it practically a legislative body; through regu1 G. W. Prothero, Select Statutes and other Constitutional Documents Illustrative of the Reigns of Elizabeth and James I (Oxford, 1898), xvii-xviii.