cusations by "ap peal" abolStat. Hen. ished by IV. c. 14. Private ac- and final form, it was for some time rivalled by a method of private accusation known as an "appeal," whose history, as a part of the procedure in ordinary criminal cases, has been heretofore examined.1 By an "appeal" any person had the right to bring any other to trial for any offence before the high court of parliament. In the reign of Richard II. the lord chancellor was in this manner impeached by a fishmonger who accused him of taking bribes in the form of money, and in cloth and fish delivered free at his house.2 The strife and the bloodshed which resulted from the use of this unbridled method of private accusation by the turbulent feudal nobility were so serious that it was finally abolished by a statute passed in 1 Henry IV. c. 14, which provided “that no appeals be from henceforth made, or in any wise pursued in parliament in any time to come." Impeachment becoming obsolete. The law of impeach ment as finally settled. The practice of impeachment by accusation of the commons, thus left without a rival, was employed against the duke of Suffolk, who was charged with high treason in 1450,3 and against Lord Stanley in 1459. After the trial of Lord Stanley, no impeachment seems to have taken place until the trial of Sir Giles Mompesson in 1621,—an intermission of one hundred and sixty-two years. From that date down to the impeachment of Lord Melville in 1805, the impeachments which have taken place have been estimated at fifty-four.5 Of these the most famous are those which took place in the struggle between the parliament and the crown during the first two years of the Revolution of 1640. The law of impeachment as finally settled has thus been summed up by Sir James Fitzjames Stephen : "I. The house of lords is a court of justice in which peers may be tried for any offence, and commoners for any offence not being treason or felony, upon an accusation or impeachment (impetitio) by the house of commons, which is the grand jury of the whole nation. "2. When such an impeachment is once made, it is not abated either by a prorogation or by a dissolution of parliament, but must go on from session to session, and from parliament to parliament, till it is determined. 1 See above, p. 311. 2 Rot. Parl., iii. p. 168. 8 Rot. Parl., v. p. 176. Rot. Parl., v. p. 369. 5 See Stephen, Hist. of the Crim. Law, vol. i. pp. 157-159. "3. A pardon from the crown cannot be pleaded in bar of an impeachment." 1 lords as a court of error in civil causes. The third and last aspect in which the house of lords is to House of be viewed as a court of justice is that in which it sits as a final court of appeal for the correction of errors in judgments and decrees rendered in civil suits by the great courts of law and equity. This supreme appellate jurisdiction in civil cases seems to have lain dormant from the time of the complete organization of the courts of Westminster down to its revival in the sixteenth and seventeenth centuries. The right to remove a law case to the house of lords by writ of error, originally derived from the crown, was confirmed by statute in the 27th year of Elizabeth;2 while their appellate jurisdiction in equity cases on petition to themselves, without reference to the crown, has been exercised since the reign of Charles I.3 commons resentative imbedded towns. 5. Having now explained how the witan grew into the House of feudal councils of the Norman and Angevin reigns, and how the product out of these feudal councils was developed the house of lords, of the repthe task remains to explain the process through which a new principle and a popular assembly grew up, alongside of the older in the oraristocratic body, out of the system of representation imme- ganization morially imbedded in the organization of the shires and shires and towns. In order fully to grasp the nature of this later growth, it is all-important to bear in mind the fact that, from the time of the Conquest down to the establishment of the estate system in the reign of Edward I., all of the great powers of government were concentrated around and centralized in the person of the king acting through his ordinary council, composed of the great officers of state and the household, or through that larger body known as the great council, composed of those tenants-in-chief who won for themselves the right to be personally summoned, and in whom that right became hereditary. During a long period of time, from the person of the king acting through his lesser or greater council, whose relation to each other is not clearly defined, 1 Hist. of the Crim. Law, vol. i. p. 146. 2 See Intr. to Sugden, Law of Real Property, p. 2. 3 See May, Parliamentary Practice, p. 56. “In 1873, indeed, their ancient How the main body of the people as organized in shires and towns win in national affairs. - emanated all the great acts of government, whether administrative, legislative, judicial, fiscal, or political.1 Under the highly centralized political system to which the Conquest gave birth, the main body of the people, upon whom the burden of government fell, were sternly excluded from all voice in its administration. The great outcome of the political struggle between the nation and the crown, which extends through the thirteenth and fourteenth centuries, is embodied in the fact that during that period the main body the right to of the nation as organized in shires and towns won for themparticipate selves the right to participate in, if not absolutely to control, the entire administration of the kingdom. The way in which the nation worked out this result was by building up alongside of the older national assembly a new body composed of the representatives of the local self-governing communities, which, from humble beginnings, won first the right to participate in taxation, then to participate in legislation, then to impeach the ministers, and finally to participate in the control of the royal administration, and in the deposition of the king himself. The whole process is one of struggle and of growth. At the outset "Vos humbles, pauvres communs prient et supplient pour Dieu et en œuvre de charité" 2 that their petitions may be granted. Next they establish the principle that not until their grievances as set forth in their petitions are redressed will they grant the supplies expected of them. With this weapon in their hands they next claim the right to examine the royal accounts, to regulate the royal expenditures, and to hold responsible to themselves the ministers, who in earlier days answered not to the nation, but to the king. The final result of this process, which has only been fully worked out in our own time, has been a virtual transfer of the fiscal, political, and administrative powers of government from the king and his council to the representatives of the people. One great power only has never pate in judi- joined in the migration. The judicial power vested in the greater and lesser councils, and in the tribunals born of them, has never passed to the popular chamber; the house of commons persistently refused to participate in the judicature of formula." See The Eng. Parliament The com mons refuse to partici cature ex cept in attainders and impeach ments. 1 See above, pp. 241-247. 2 This, Gneist says, "is the wonted (Shee's trans.), p. 138. 2 commons the realm save so far as its participation was necessary in bills of attainder and impeachments. The process of growth through which the body of the nation, as organized in shires and towns, work their way into a partial exercise of the great powers of government, originally vested in the king and his feudal council, begins with the appearance of the shire representatives in the national council in the reign of John.1 That tentative effort is followed in 1265 by the appearance in the national council not only of representatives from the shires, but from the cities and towns.2 From the meeting of the famous parliament of 1295, which completes the transition from a feudal council to an assembly of estates, the right of the shires and towns to send representatives to the national council becomes a permanent institution. It is, therefore, as a part of the estate system that the representa- Representa tives of the English commons finally take their place in the tives of the national parliament. Who, then, were the third estate, the take their place in commons, as that term was understood in the politics of parliament the thirteenth century? As heretofore explained, the term the estate "commons," as it appears in the English political system, system. must not be understood to imply a union into one corporate body conscious of its own identity of all orders of men below the nobility and the clergy, it must be understood only to include all freemen organized and incorporated for government in the two leading classes of local communities, shires and towns. In order, therefore, to present a complete statement of the origin and growth of the house of commons, it is first necessary to describe the political organization of the shires and towns; second, the successive periods at which representatives were sent from these local communities to the national council; third, the union of the shire and town representatives in one house; fourth, the process through which that house won, step by step, the right to participate in all the great functions of government. as a part of 6. At an earlier stage of this work the historical origin of Origin and the shire, and the nature of its internal organization before structure of and after the Conquest, were made the subjects of special communiexamination. The conclusion was then reached that the 1 See above, p. 377. 2 See above, p. 403. 8 See above, p. 417. 4 See above, p. 356. the shire ties. The mod ern shire an modern shire - the shire of the consolidated kingdom finds its historical origin in the primitive state; "that the state of the seventh century became the shire of the tenth, while the shire of the seventh century became the hundred of the tenth." The modern shire is an aggregation of hunaggregation dreds, the hundred an aggregation of townships. The fact that the modern shire finds its historical origin in the primitive state is best illustrated by the structure of the shiremoot, which was not only a popular but a representative assembly a county parliament 2-in which each township and hundred appeared in the persons of its representatives. The repre- In the reeve and four selectmen who appear for the townprinciple at ship in the courts of the shire and the hundred we have the work in the very earliest illustration of the representative principle. In of hundreds. sentative shire. the shire court thus constituted, the whole body of "suitors" (attendants) were the judges, and in theory whatever judg ment was rendered was the judgment of the whole assembly. In practice, however, the unwieldy body usually delegated its powers to a committee of "judices" who acted in behalf of the whole court. This principle of delegation, involving the selection of a chosen few to act in behalf of the whole, which is further illustrated by the action of the twelve senior thegns as a jury of presentment, and by the party-witnesses who under certain conditions declare the report of the community, runs through the whole system. Into the structure and procedure of the courts of the shire and hundred the practice of election and representation entered from the very The shire earliest times as an active and familiar principle. Through the ordeal of the Conquest the system of local self-governConquest. ment embodied in the shire system passed without material system sur vives the impairment. It seems to have been a leading feature in the Conqueror's policy to maintain the ancient usages of the English nation by keeping up the administration of the customary law in the popular courts of the shire and the hundred. Leaving out of view the removal of the bishop from the shire court to a court of his own, the transformation of the ancient office of earldom into a titular dignity, and the addition of trial by battle to the ancient procedure, the 1 See above, pp. 145, 170-172 2 See above, p. 303. 8 See above, pp. 203, 303. |