"Tonnage❞ the chief group of these indirect taxes is lumped together under the designation of 'tonnage' and 'poundage.'" 1 and tion of the commons in legislation. II. The fact has been heretofore explained that the primiParticipa- tive form of royal legislation, common to all the Teutonic nations, and which from the earliest times moulded the enactments of the Old-English kings, was retained by their Norman and Angevin successors. As Ine and Ælfred legislated with the counsel and consent of the witan, so William and Henry of Anjou legislated with the counsel and consent of the great council. During the two centuries which follow the Conquest, "counsel and consent " may not have implied that full and authoritative power of deliberation possessed by the witan in earlier times; "and yet the very survival of the ancient form attested the fact that the theoretical right of the nation to participate in legislation was not forgotten."2 From the time of the Conquest down to the establishment of the estate system in the reign of Edward I., all the great acts of government, whether administrative, legislative, judicial, political, or fiscal, emanated from the person of the king acting through his inner council, composed of the great officers of state and the household; or from 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 The great in whom that right became hereditary. The way in which government the main body of the nation, grouped together in shires and towns, achieved the right to participate in the great functions time by the of government, thus monopolized for a time by the king and his feudal council, was by building up alongside of the older body a new and a representative assembly which first vindicated its right to participate in taxation, next to participate in legislation, and finally to control the administration of the state itself. How the first step was taken, how the representatives of the shires and towns won for themselves the right to join in the granting or withholding of taxes, has been exin taxation plained already. By the leverage thus established, the comit the right mons soon found themselves in a position to take the second to partici- step, the right to participate in taxation soon drew after legislation. it the right to participate in legislation. This result was functions of monopolized for a king and his feudal council. Right of the com mons to participate drew after pate in 1 Gneist, The Eng. Parl., p. 138, Shee's trans. 2 See above, pp. 186, 240, 291, 292. See above, pp. 482-486. brought about by the employment of a homely but natural expedient. As early as the reign of Henry III. the principle was openly recognized by both the crown and the nation that concessions in favor of liberty moving from the former to the latter were legitimate subjects of bargain and sale. Of this principle, the confirmation of the charters by Henry in 1225 may be taken as a typical illustration. In his charter the king openly admits that "for this concession, and for the gift of these liberties and those contained in the charter of the forests, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and all men of the realm granted us a fifteenth part of all their movable goods." 1 In the light of such precedents the representatives of the commons, when as a matter of fiscal expediency they were regularly Supply dependent summoned to parliament, were quick to learn how to insist upon the upon the redress of grievances in return for a money grant. When such a grant was asked, it became the custom for the commons to put forward in the form of a petition to the crown such grievances as required amendment at the hands. of the king and his council.2 The discussion of grievances became the preliminary to the discussion of the grant, which was invariably made in the expectation that the prayer of the petition would be followed by adequate redress. Although The procedearlier precedents of the procedure by petition may be found, tion. the records of the early years of Edward II. (1309 and 1310) afford perhaps the earliest satisfactory illustrations of the nature of such petitions, and of the character of the complaints which they set forth. In the reign of Edward III. it became the custom for the chancellor at the opening of parliament to proclaim the willingness of the king to hear the petitions of his people. The petitions thus presented articles, eleven in number, see Prynne, 8 Cf. Hallam, M. A., vol. iii. pp. 40 43 Rot. Parl., ii. pp. 237. 309; iii. pp. redress of grievances. ure by peti tions as demanded the making of an ordi nance or statute. coined out of the peti tion and answer. consisted either of such as required reference to the proper Such peti- judicial tribunal, or to the king himself in council, or of such as demanded redress by the making of an ordinance or statredress by ute. To this latter class belonged the public petitions which were presented by the commons in behalf of the community. To such petitions the king was expected to make his answer during the session of parliament, and then "the petition and The statute the answer were entered in the parliament rolls, and out of both, by advice of the judges and others of the king's counsel, the act was drawn up conformable to the petition and answer, and the act itself for the most part entered in a roll, called the statute roll, and the tenor thereof affixed to proclamation writs, directed to the several sheriffs, to proclaim it as a law in their respective counties." 2 The right to participate in legislation thus won by the commons through the petition process grew to such proportions during the fourteenth century that, during that period, as the parliament rolls will show, nearly all statutes were based upon such petitions. At what exact point of time the concurrence of the commons in legislation was deemed indispensable, it is difficult to determine. Such could not have been the case as early as the 18th of Edward I., the year in which the statute Quia emptores was enacted by the king and the barons, before the day for which the commons were summoned. Not before the reign of Edward II. was the right of the commons to assent to legislation clearly established; not until the fifteenth year of that reign was it declared by statute that "the matters to not clearly be established for the estate of the king and of his heirs, and for the estate of the realm and of the people, should be reign treated, accorded, and established in parliament by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as had been before accustomed." 4 When the right of the commons to assent to legis Nearly all legislation based on petitions during the fourteenth century. Right of the com mons to assent to legislation established until the of dispatching the petitions in parlia- 1 As to the ancient mode of peti- 2 Hale, Hist. of the Common Law, vol. i. pp. 16, 17. 8 On the 14th of June the knights of the shire were summoned to meet at Westminster on the 14th of July. On the 8th of July the king, at the instance of the magnates, enacted the statute Quia emptores. For the writ of summons to the knights, see Lords' Report, App. i. 54; for the act, see Statutes, i. p. 106. 4 Statutes 15 Edw. II. i. 189; Lords' Report, vol. i. p. 282. lation thus became clearly established, the ancient formula was so widened as to embrace the new factor. After the permanent incorporation of the representative members, the king legislates either "by the assent of the prelates, earls, barons, and the commonalty of the realm," or "at the request of the commons, and by the assent of the prelates, earls, and barons." During the reign of Edward III. the name of the commons is rarely omitted from the enacting clause of a statute, and from that time it may be safely assumed that the concurrence of both houses in legislation was deemed necessary.1 uncertain tion. The foregoing method of legislation, based upon the peti- Abuses and tions of parliament and the answers of the king thereto, was ties which liable in practice to so many abuses upon the part of the crown grew out of the procedthat it became necessary to supersede it by a more definite ure by petiand guarded system. In the first place the grant of money had necessarily to precede the redress of grievances, the royal promise was the only guarantee or equivalent which the parliament received when the grant was made. To obtain clear and definite answers to petitions, much less an actual redress of grievances during the session of parliament, was often attended with great difficulty. In 1344 and 1362 the commons beg, for the safety of the people, that the petitions may be examined and redress ordered before the end of the parliament.2 Sometimes, by a qualified or evasive answer, the petition was so modified that the statute coined out of the two in nowise expressed the original intention. And even in the event of a prompt and definite answer being given during the session, it was not a certainty that the petition and answer would in the hurry of business, in the interval between the parliaments, be turned into a statute. And even if it was, the danger remained that the petition would be materially altered in the process of being transformed into an act to be entered upon the statute-book. To remedy evils of the kind last named, the commons, in 1347, pray that all petitions presented by them for the remedy of mischiefs might be an 1 Mr. Clifford (Hist. of Private Bill Legislation, vol. i. p. 288) says: "When the commons are not named in the early statutes, their assent may be presumed from the fact that most measures originated with their petitions." This statement may be accepted with Rot. Parl., ii. pp. 149, 272. old system the intro duction of form of statutes. swered and indorsed before the commons in parliament, that they might see the indorsements and have remedy thereon Evils of the according to the ordinance of parliament.1 In order to remremedied by edy the evils and uncertainties which grew out of "this extracting of the statute out of the petition and answer, about bills in the the latter end of Henry VI. and beginning of Edward IV., they took a course to reduce them, even in the first instance, into the full and complete form of acts of parliament." 2 When this departure was made from the older form of initiation by petition, when bills were introduced in the form of statutes, the original draughts of which could only be altered Transition by the parliament itself, the transition from royal to national to national legislation, which began with the reorganization of the feudal legislation. council as a representative assembly, reached its full and final consummation. from royal Difference between a an ordi nance. It must not be supposed, however, that the right thus won statute and by the parliament to control the enactment, amendment, and repeal of all the more weighty and permanent acts of national legislation was absolutely exhaustive of the older right of the crown to legislate in a tentative way, and with the advice of the council, upon a certain class of subjects, by way of ordinance. Through the maze of learned refinement, which has grown out of the attempt to define the difference between a statute and an ordinance, it is only possible to pass without confusion by keeping steadily in view the two distinct sources Ordaining from which each drew its authority. The line must be clearly the king in drawn between the ordaining power of the king in council council, and and the enacting power of the king in parliament. power of the enacting power of the king in After the organization of the estate system the effort was continuous parliament. upon the part of the national assembly to draw to itself the exclusive control of the taxative and legislative powers which, at an earlier day, were vested in the king and council. In resisting such encroachments upon the prerogative, the effort upon the part of the crown was to reserve to itself fragments at least of taxative and legislative power which it could still exercise in council free from parliamentary interference. In the review heretofore made of the struggle between the nation and the crown as to the exclusive right of the former 1 Rot. Parl., ii. p. 165. Statutes, preface; May, Parl. Practice, p. 520, 2 Hale, Hist. of the Common Law, vol. i. p. 18. See, also, Ruffhead's |