abolished prospectively, as to England, by the Judicature Act, 1873, two Lords of Appeal in Ordinary were constituted by Act of Parliament, with the rank of baron for life, and the right of sitting and voting during their tenure of office only.1

·

election and

tion familiar

to the

As the ordinary tenant-in-chief became gradually merged Ideas of in the general mass of freeholders, his theoretical right of representa attending the Commune Concilium' in person was exchanged for the practical right of electing representatives, nation. who in his name consented to the imposition of taxes. The ideas of election and representation, both separately and in combination, had been familiar to the nation, in its legal and fiscal system, long before they were applied to the constitution of the National Parliament. The English Kingship was always in theory, and to a great extent in practice, elective. The bishops and abbots were supposed to be elected by the clergy, of whom they were the representatives. In the local courts of the hundred and the shire the reeve and four men attended as representatives from each township; and the twelve assessors of the sheriff represented the judicial opinion of the whole shire. Subsequently, in the system of recognition by jury, as established by Henry II., the principles of election and representation were successively applied to almost every description of business-fiscal, judicial, and administrative. In the four sworn knights summoned by the sheriff to nominate the recognitors of the Grand Assize we have, probably, the first germ of a county representation.

historical instance of

The first historical instance of the extension to a National First Council of the representative machinery which had long existed in the Folkmoot of the Shire is afforded by the the summons of represen

a hereditary peer of the realm. The resolution of the lords, remarks Sir Erskine May, has since been generally accepted as a sound exposition of constitutional law. Where institutions are founded upon ancient usage, it is a safe and wholesome doctrine that they shall not be changed, unless by the supreme legislative authority of Parliament.'-Const. Hist. i. 298.

39 & 40 Vict. c. 59.

2 Stubbs, Select Chart. Introductory Sketch, 24; and see Palgrave, Eng. Commonwealth, ch. viii.

National
Council.

tatives to a Council held at St. Alban's on August 4th, 1213, after John's submission to the Pope, and during his dispute with the Northern barons on the question of foreign service.1 This assembly was attended not only by the bishops and barons, but also by the representative reeve and four men from each township on the royal demesne. The immediate business to be transacted was the assessment of the amount due by way of restitution to the Church; but several other matters of national importance appear to have been discussed by the assembly. The justiciar, Geoffrey Fitz-Peter, submitted to the whole body the recent promise of good government made to Archbishop Langton by the King on receiving absolution at Winchester, about a fortnight previously; referred them to the laws of Henry I. as the standard of what that good government should be; and issued an edict commanding the sheriffs and other royal officers, on penalty of life and limb, to cease from their illegal exactions.

four in

to De

3

County Four instances of summoning representatives of the representation in shires to the National Council are met with prior to De Parliament: Montfort's celebrated Parliament of 1265, which is somestances prior times erroneously spoken of as the 'origin of popular reMontfort's presentation.' (1.) The first occurred during the contest Parliament between John and the barons, when both sides found it of 1265. necessary to seek the support of the free tenants of the counties. In 1213 (15th of John) the King, by his writ to the sheriffs, directed four discreet knights of each shire to be sent to him at Oxford 'ad loquendum nobiscum de negotiis regni nostri.' There is no indication on the face. of this writ whether the four knights were to be elected by the county or returned at the discretion of the sheriff; but as there already existed a recognized machinery for the election, in the county court, of four knights to nomi

(i.) 7th

Nov., 1213 four knights from each

County sum

moned to Oxford.

See supra, p. 107.

Matt. Paris, p. 239. A.D. 1213.

3 E.g., Hallam, speaking of De Montfort's parliament, says, 'almost all judicious inquirers seemed to have acquiesced in admitting this origin of popular representation.'-Midd. Ages, iii. 27.

nate the recognitors in civil suits and the grand jury for the presentment of criminals, we may reasonably conclude that the accustomed machinery was now made use of for the novel purpose of county representation in the general assembly. It is probable also that the 14th clause of John's charter, which promised that the minor barons should be summoned generally by the sheriff, though it undoubtedly recognized their personal right to attend, was practically interpreted by the light of the county representation system already introduced less than two years previously. If, as we cannot doubt, the county representatives were elected in the County Court, it follows, since all freeholders had a right to attend this court, that the knights of the shire were held to represent not merely the minor tenants-in-chief, but all the freeholders of the shire.1

use of

matters.

A long interval of forty years elapsed before the pre- Increased sence of representatives of the counties in Parliament is elected again recorded. But the period is marked by the increas- county representatives ing use of representatives elected in the county court for for fiscal fiscal and other purposes. Thus, in 1220 and 1225, two and other writs of Henry III. direct the election of knights for the assessment and collection of subsidies, and in 1226 writs were directed to the sheriffs of eight counties to send to the King, at Lincoln, four knights elected in each county, to make complaints against the sheriffs, concerning an alleged infringement of the Great Charter. To a general assembly Name of of the barons at London in 1246, the name of Parliament, which had previously been indiscriminately ascribed to assemblies of various kinds, is for the first time given by a

1 The only constitutional mode of the sheriff's actio,' remarks Professor Stubbs, was in the county court. Hence the minor barons, to be consulted at all, must be consulted in the county court. But that court was already constituted of all the freeholders, and the machinery of representation and election was already familiar to them. It would then appear certain that, from the time the representatives of the shires were summoned, they were held to represent the whole body of freeholders.' Select Chart. Introductory Sketch, 39, 40. See also Stubbs, Const. Hist. ii. 225-232. Close Rolls, i. 437; Foedera, i. 177.

3 Report on Dignity of a Peer, App. i. 4.

Parliament.

(ii.) A.D.

summoned

to West

minster.

contemporary chronicler, Matthew Paris (p. 696). Henceforth it became specially, though not for many years exclusively, the appellation of the National Council.'

(2.) The second instance of county representation in Par1254: two liament is met with in 1254, when Henry III. was in knights from each county Gascony, and in want of men and money. By his direction Queen Eleanor and the Earl of Cornwall, the regents, issued writs to the sheriffs to cause to come before the King's council at Westminster two lawful and discreet knights from each county, whom the men of the county shall have chosen for this purpose in the place of all and cach of them, to consider, together with the knights of the other counties, what aid they will grant the King in such an emergency. These writs possess both a positive and a negative importance. On the one hand we have it clearly directed that the two knights are to be chosen by the county that is, in the county court; that they are to represent the whole county, and are to have a deliberative voice in the assembly; on the other, the absence of any restriction of the elective franchise to tenants in capite, or to knights, is sufficient evidence that no such restriction then existed.

Henry III. excites the

national opposition.

The utter falseness of Henry III.-who persistently disregarded the Great Charter, notwithstanding his repeated solemn confirmations of it—his devotion to successive sets

In a writ of the 32nd of Henry III. (1247) the expression coram rege et toto parliamento' is used.-Rot. Claus. 32 Hen. III. m. 13, dors. Even after the National Council had permanently in 1295 assumed the form of a perfect representation of the three Estates of the Realm, the name of Parliament continued, though improperly, to be applied both to the terminal sessions of the King's Ordinary Council, and to the occasional assemblies of the Magnum Concilium. From these councils the true National Council, the Commune Concilium Regni, is sometimes distinguished by the chroniclers as Genera e Parliamentum. A not infrequent term in early use for the sessions of the National Council was the Latin colloquium; and it is by no means unlikely,' remarks Professor Stubbs, that the name of Parliament, which is used as early as 1175 by Jordan Fantosme [who mentions a debate before the King of Scots in sun plenier parlement ], may have been in common use. . . When the term comes into use it is applied retrospectively; and in a record of the 28th year of Henry III., the assembly in which the Great Charter was granted is mentioned as the "Parliamentum Runimedae." Const. Hist. i. 570; ii. 224, 261.

The words of the writ are: quatuor legales et discretos milites de comitatibus praedictis [Bedeford et Bukingeham] quos idem comitatus ad hoc elegerint, vice omnium et singulorum corundem comitatum, videlicet duos de uno comitatu et duos de alio.'-Lords' Report on the Dignity of a Peer, i. 95, and App. i. p. 13; Select Chart. 367.

of foreign favourites, his foolish and expensive attempt to secure the crown of Sicily for his son Edmund, his illegal exactions, prodigality, and support of Rome against the National Church, excited in all classes of his subjects feelings of animosity and resistance] equal to, if not exceeding in intensity, those which had inspired the combination against John.

Matters came to a crisis in the Great Council or Parlia- The Mad Parliament' ment, which met at London on the 9th of April, 1258; at Oxford. and after stormy debates, lasting till the 5th of May, the AD. 1255. King found himself obliged to submit wholly to the guidance of the barons. At their desire he consented to the appointment of a Committee of Twenty-four persons, to be elected, twelve by the barons and twelve by the King, in a Parliament-which the King's friends stigmatized as the 'Mad Parliament'-summoned to meet at Oxford on the 11th of June. To these Twenty-four unlimited power was confided to carry out all necessary reforms. They began by drawing up the set of articles Provisions known as the Provisions of Oxford, under which all the of Oxford.' powers of government were placed in the hands of a kind of representative oligarchy. By a rather complicated Council of process, bearing some resemblance to the Venetian constitution, each twelve of the twenty-four selected two from the other twelve, and the four thus chosen elected fifteen as a continual council of state. Another committee of twenty- Committee of Twentyfour was appointed for the special business of treating four for of the aid required by the King for the war; and in order, Aids.

Fifteen.

The government in England has on four occasions been placed for a time Oligarchies in the hands of an oligarchy. In John's reign, the 25 barons of Magna Charta; in England. under Henry III., the Oxford Committee of 24; under Edward II., the 21 'Lords Ordainers'; and under Richard II. the 5 Lords Appellant.' Guizot, treating of the Provisions of Oxford, observes: 'Les barons qui avaient arraché la Grand Charte au roi Jean avaient essayé, pour se donner des garanties, d'organiser d'avance et légalement la guerre civile, en cas de violation de la charte. Les barons qui dictèrent la loi à Henri III. allèrent plus loin: ils essayèrent d'organiser non la résistance, mais le pouvoir, et de se donner des garanties, non par la guerre, mais par la constitution même du gouvernement. Ne pouvant contenir dans de justes limites l'autorité du roi, ils entreprirent de la lui enlever et de la prendre eux-mêmes; en un mot, de substituer au gouvernement du roi celui de l'aristocratie.'-Hist. des Origines du Gouvernement Représentatif, p. 165.