GROWTH OF PARLIAMENT.] ENGLAND 315 pu-
- ele-
of )re- stu- tsof vague, imply a popular element. We read of knights, of tenants-in-chief, of freemen, sometimes even of freemen and villains, sometimes, more vaguely still, of " universi," " universitas Anglias," and the like. In some cases we are able better to interpret these vague phrases. For instance, in 1224 each shire sends four knights chosen by the "milites et probi homines." Whether these knights were or were not to vote along with the magnates, they were at all events to transact business with them. We must always remember that in these times formal voting in the modern sense is hardly to be looked for. In 1254 we have a dis tinct case of two knights summoned from each shire by royal writ. In the Oxford parliament of 1258 four knights are ordered to be chosen in each shire, who are to report to another parliament within the same year. At that parlia ment they seem to appear by the title of " Communitas Bachelario) Angliae." It may be doubted whether this is strictly a case of the knights acting as part of the parlia ment. Still every instance of the kind must have helped to strengthen the growing doctrine of representation. From this time the attendance of elected knights seems to be fully established, and along with the knights we find in many cases distinct representatives of the clergy. It is in Earl Simon s parliament of 1265 that we first find distinct representatives of the boroughs. Each county sends two knights, each city or borough two citizens or burgesses, and the cinque ports four each. But this same parliament shows how fluctuating the practice of summons still was. The is earl, strong among the clergy, strong among the people at large, was much less strong among the great men of the realm. Besides summoning the citizens for the first time, he summoned a crowd of churchmen, regular and secular, greater than appeared in any other parliament. But he summoned only five earls, including himself, those namely whom he could trust. We should call such a body a packed parliament ; but for a long time every parliament was a packed parliament. That is to say, some barons, some abbots, were always personally summoned, some towns were always called on to send representatives; but the barons, the abbots, and the represented towns were by no means the same in every parliament. This kind of irregularity is always found till institutions have finally stiffened into some particular shape. Our whole law and constitution rests far more on precedent than on formal enactments, and in unsettled times precedents are slow in establishing themselves. The parliament of 1265 was the model parliament, the assembly whose pattern, in its essential features, set the standard which was in the end followed, and which has lasted till our own time. 1 But the pattern which it set did not become the invariable rule till the great parliament of 1295. In the earlier parliaments of Edward I. the knights and citizens are often mentioned; but, on the other hand, we meet also with the same vague descriptions as in earlier times. But in 1295 Edward definitely adopted the model which Simon has set him, and the summoning of knights, citizens, and burgesses, though with great irregularity as to 1 In the great political poem which forms the manifesto of the patriotic party are two lines which have been often quoted : " Igitur coinmunitas regui consulatur, Et quid univei Mtas sentiat, sciatur." But what follows shows that the duties of a popular assembly were held to be, not to enact new laws, but to declare the old ones, and to procure their better observance : " Cu i leges propritc maxime sunt notse, Nee cuncti proviricire sic sunt idiots, Quin sciant plus caeteris regni sui mores, Quos relinquutit posteris hii qui sunt priores. Qui reguntur legilms magis ipsas sciunt ; Quorum sunt in usibus phis perita: fiunt, Et quia res agitur sua, plus curabunt, Et quo pax adquiritur sibi procurabunt. iijits of ard the places from which representatives were summoned, has ever since been the rule. It was thus under Edward I. that parliament finally put on the essentials of its present form. But we must still allow for irregularities in practice. It does not follow that every enactment was always passed with the consent of all the classes of which the parliament was made up. A doctrine had come in that the king was the legislator, that the votes of the parliament, or of any part of it, were petitions which he could accept or reject, or again that he might legislate on a petition from one house or branch of the assembly apart from the others. The national council had now won back its ancient constitution as an assembly of the freemen of the realm, either personally or by representation. But it was only step by step that it won back the full powers of the ancient Witenage- m6t. There are some indeed which it still shrinks from exercising directly, some which it shrinks from exercising at all. The reign of Henry III. was a reign of constant parlia mentary action, but it was not a time rich in legislation in the strictest sense. The most direct case of change in the law during Henry s reign was the abolition of the ordeal at its beginning. This led incidentally to further changes in judicial procedure, and it is one of the chief landmarks in the development of the jury system. But it is in itself not so much independent legislation as the application to Eng land of a decree of a General Council of the church. In short the parliaments of Henry III. are less famous for changing the law than for refusing to change it. The famous saying " Nolumus leges AngHas mutari " dates from the council of Merton in 1236, when the barons refused to agree to the proposal of the prelates for assimilating the law of England to the civil and canon law in the matter of children born before wedlock. By the former systems of jurisprudence, the subsequent marriage of their parents admitted them to the rights of legitimate birth. But the barons chose to maintain the harsher rule of the common law of England. But, if the reign of Henry III. was not a time rich in legislation, it forms an important stage in the growth of our parliamentary life. The chief work of that reign was that the first steps were taken towards the practical establishment of the doctrine set forth in the omitted clauses of the Great Charter, the doctrine, in modern phrase, that the power of the purse belongs to parliament. In Henry s day England and her parliament had to wage a never-ending strife against her two enemies, king and pope. The main duty of the nation was to withstand the extortions of both alike. The king was always asking for money ; the conditions of a grant commonly were that the charters should be again confirmed and be better observed. And gradually another demand arises, that the great officers of state shall be appointed, if not by parliament, at least with the assent of parliament. But demands like these, demands for the removal of aliens and the like, are all demands for the reform of abuses and the execution of the old laws ; new laws are never asked for. The Oxford Provisions of 1258 show the ideas of reform which were then entertained ; it is not legislation, it is reform of bad administration, even at the cost of transferring the king s authority to other hands, which is asked for. Simon himself, the greatest of constitutional reformers, was not a legislator. His Parliament is famous, not for anything that it did, but for what it was. Nor after Simon s fall do we meet with much legislation strictly so called. The ordinances of Kenilworth and Marlborough are ordinances for the settle ment of the kingdom, ordinances for the better observance of the Charter and of the statutes of 1259. They are not legislation in the strictest sense, the enactment of absolutely new laws. Legisla tion under Henry III. Parlia mentary growth under Henry III.; power of
the pur^e,