GROWTH OF PARLIAMENT.] ENGLAND 323 ncon- itu- onal actices the Jigs. .tions parlia- iut as peace <I war. whenever prerogative was defined, it was at once limited and strengthened. But the very strengthening was of the nature of a limitation. A power which was directly or indirectly bestowed by parliament ceased to be a power inherent in the crown. The struggle was therefore a hard one. The kings strove to hold their ground at every point, and to escape from the fetters which the nation strove to lay upon them. When the Commons tried to make the king dismiss evil counsellors or moderate the expenses of his household, when they tried to regulate the oppressive right of purveyance, the king was apt to find a loop-hole in some protest or reservation or saving clause. So the kings strove to keep the power of arbitrary taxation in their own hands by drawing distinctions between customs and other sources of revenue. So they strove to keep the power of legislation without the consent of parliament, by drawing a distinction between statutes and ordinances, and by pretending to a right to suspend the operation of statutes. The claim to legislate by ordinance is closely connected with the way in which all our legislative and judicial bodies arose. The parliament, the privy council, the courts of justice, have all grown out of the ancient assembly. For some while after the Conquest it is not always easy to see whether the words curia regis mean the great council of the nation or the smaller council of the king s immediate advisers. The greater and the smaller council were alike fragments of the national assembly, and both alike derived their special shape from the practice of personal summons. If one body so formed had the right of legislation, it might be argued that the other body so formed had it also. So again, as the Commons grew r , the form of their petitions, praying that such and such an enactment might be made by the king with the consent of the Lords, seemed to recognize the king as the only real lawgiver. It might suggest the thought that he could, if he would, exercise his legislative powers, even though the Commons did not petition, and though the Lords did not assent. A crowd of loop-holes were thus opened for irregular doings of all kinds for attempts on the part of the kings to evade every constitutional fetter for attempts to reign without parlia- msnts, to impose taxes by their own authority, or to legislate with the consent only of their own council or of some other body other than a regular parliament. Every point had to be struggled for over and over again. But by the end of the fourteenth century we may say that the constitution and the powers of parliament were, as far as the letter of the law went, much the same as they are now. But it took three hundred years more to secure the observance of the letter of the law, while the two hundred years that have followed have, by the side of the written law, developed the unwritten constitution. For the peculiar character of that unwritten constitution, for the system by which a crowd of powers which the Commons shrink from directly exercising are now exercised by them indirectly, we have to wait for some ages. In those days a power was either exercised directly or it was not exercised at all. Thus one most important power which was freely exercised by our most ancient assemblies, but which modern parliaments shrink from directly exercising, the power of making peace and war, was in the fourteenth century in a very irregular state. Sometimes parliament claims a voice in such matters ; sometimes the king seems to thrust a control over them on an unwilling parliament. That is to say, the kings wished to make parliament share the responsibility of their acts. A parliament could hardly refuse to support the king in a war which it had itself ap proved. The wars of Edward III., and his constant calls for money, made frequent parliaments needful. Perhaps no other series of events in our history did so much to strengthen and define every parliamentary power. But it was mainly by the petitioning position of the Commons that all power has Growth thus been drawn into the hands of parliament. Any matter of ^ e might become the subject of a petition of the Commons. It y^Tcoin- followed that, as their petitions gradually grew into demands mo ns. which could not be resisted, every matter might become the subject of legislation by the Commons. In their position as petitioners lay their strength. They only petitioned, while the king enacted and the Lords assented. But the humbler position gave them the first word. The enacting power of the king gradually came to be a mere power of refusing to enact, a power which has long ceased to be exercised. The humble petitioners came to be the proposers of everything, and so to be the masters of everything. They had the privilege of the prwrogativa tribus. The power of parliament to settle the succession to the Po-wer of crown, that is, the ancient right of election in another shape, r arlia - comes more largely into play at a later period. We have *" le t e however one of the greatest instances of its exercise in the SU cces- deposition of Richard and the settlement of the crown on sion. Henry IV. and his heirs. And twelve years before the ancient doctrine was carried out in practice, it was solemnly declared by Bishop Arundel and Thomas duke of Gloucester, speaking in the name of parliament, that, by an ancient statute, parliament, with the common consent of the nation, had a right to depose a king who failed to govern according to the laws and by the advice of his peers, and to call to the throne some other member of the royal family in his stead. Most certainly there never was such a statute in the form of a statute ; but the doctrine simply expressed the immemorial principle on which the nation had always acted whenever it was needful. And the state ment that there was a statute to that effect was perhaps simply an instance of the growth of the doctrines of the professional lawyers. Men were beginning to forget that the earliest written law was nothing more than immemorial custom committed to writing. They were beginning to think that, wherever there was law or even custom, it must have had its beginning in some .written, even if forgotten, enactment. After all, nothing better shows the power of parlia- Attempts ment than the attempts which were often made by those in to influ- power to procure a packed House of Commons. Complaints ^ n were made that the sheriffs returned knights of the shire who were not really the choice of the electors, and that they summoned, or failed to summon, boroughs to send burgesses, according to their arbitrary will. Lastly, in the early days of Henry VI., we find the rights of the electors restricted by parliament itself. The constitution of the House of Commons was clearly growing too popular for the ruling powers, and it was thought needful to legislate in the inte rests of oligarchy. By the statute of 1429 the electors of Narrow- "small substance and of no value" were disfranchised, and |" g f the right of voting was confined to those who had a freehold cllise of forty shillings yearly, a not inconsiderable amount at that time. By another statute of the same reign (1444- 45) it is enacted that the knights chosen shall be " notable knights or notable esquires, gentlemen by birth." This enactment is instructive in many ways. It shows, what we find to have been the case almost from the beginning, that the knights of the shire were not always knights in the strict sense. The electors were clearly trying to break down all distinctions of rank and birth, and an attempt is made to enforce these distinctions bylaw. Happily no de finition of "gentlemen by birth" was or could be attempted. This backsliding statute has therefore become a dead letter, as its fellow has no less through the change in the value of money. The powers of parliament in this age, and the external influences under which parliaments acted, cannot be better
illnstated than by a comparison of the last two parliaments