to itself the parliament short of victory. to authorize taxation, the fact was developed that, even after the Confirmatio Cartarum, the crown, under the cover of certain reservations, for a long time reserved the right to talliage the cities and towns in demesne, and to a certain extent to regulate the customs.1 Long after the general right of the nation to authorize taxation had been clearly admitted, an unflinching and persistent warfare had to be carried on by the parliament before the taxative power of the king in council was fully and finally extinguished. In draw- In drawing ing to itself the right to initiate and control legislation, the control of parliament stopped short of complete victory, it left in the legislation, hands of the king in council an undefined residuum of legis- stopped lative power which was for a long time exercised by the complete making and revoking of a class of temporary enactments known as ordinances. Whereas, before the end of the fourteenth century, the general principle was firmly established that all the great and permanent acts of national legislation could only emanate from parliamentary authority, it was equally well understood that alongside of this principle existed the ordaining power of the king in council. With this statement as a preface, it will be the more easy to grasp the full significance of the following statement of the recognized distinction between a statute and an ordinance: "The statute is a law, or an amendment of law, enacted by Bishop the king in parliament, and enrolled in the statute roll, not definition to be altered, repealed, or suspended without the authority of of the difparliament, and valid in all particulars until it has been so revoked; the ordinance is a regulation made by the king, by himself, or in his council, or with the advice of his council, nance. promulgated in letters patent or in charter, and liable to be recalled by the same authority. Moreover, the statute claims perpetuity. . . . The ordinance is rather a tentative act which, if it be insufficient to secure its object, or if it operate mischievously, may be easily recalled, and, if it be successful, may, by a subsequent act, be made a statute." 2 12. At what exact point of time the parliament, which won for itself the exclusive right to authorize taxation and to 1 See above, pp. 487. 2 Stubbs, Const. Hist., vol. ii. pp. 585, 586. On the distinction between statutes and ordinances, see, also, Hal lam, M. A., vol. iii. pp. 50-53; Gneist, Stubbs's ference be tween a statute and an ordi ary control over the royal administration. Minority of Henry III. the first since the Conquest. An inner royal council. Parliament initiate legislation, secured the more comprehensive right to deliberate in all matters of national concern, it is difficult to determine. Although such a right was no doubt claimed and exercised in some form by the council of magnates prior to the date of the Great Charter, it is not until the reign which follows that event that we find clear illustrations of the right of parliament to discuss foreign affairs, and to supervise and control the royal administration. The minority of Henry III., the first which had occurred since the Conquest, cast upon the national council the duty of appointing a guardian of king and kingdom; and it is more than likely that the other personal advisers who stood with the regent around the king were, during the minority, appointed by the same authority. From that time it is possible to trace the existence of an inner royal council, composed of the king's personal advisers, which acts as a distinct and organized body, apart from the larger administrative body that directs the affairs of state and the household. Out of this condition of things the constitutional doctrine emerges that the king can do no wrong, and that the ministers who advise him are responbility of the sible to the assembled representatives of the nation, who the nation have a consultative voice in their appointment.1 The right thus established by the baronage to control the royal administration during the minority of the king was expanded, before the close of Henry's reign, into a general right of control whenever the exigencies of the state might require it. When in the crisis of 1258 the executive government was found to be in such hopeless embarrassment as to render it necessary for parliament to place the royal authority in commission, the baronage elected a board of control of twenty-four, who Provisions drew up the articles generally known as the Provisions of of Oxford, Oxford, under whose terms three committees were chosen, Responsi ministers to in parliament. 1258. who were charged with the task of reforming the entire administration.2 When in 1297 Edward I., under a pressure to raise money for a foreign war, attempted to subject the nation to unauthorized taxation, he was resisted by the Bohun and baronial party under the lead of Bohun and Bigod, who, with Bigod. an armed force at their backs, appeared in the exchequer and forbade the collection of the tax until a promised confirma1 See above, pp. 396, 397. 2 See above, pp. 400, 401. tio Carta Ordainers, tion of the charters had first taken place. In a parliament irregularly summoned in the midst of the revolution the regent was forced to concede, and the king to approve, the national demands, which were embodied in the famous Con- Confirmafirmatio Cartarum.1 When, early in the reign of Edward II., rum, 1297. a crisis was provoked by the offensive conduct of the royal favorite Piers Gaveston, as well as by the confused condition into which the affairs of the kingdom had fallen, a council of bishops and barons was called to meet the king at Westminster in February, 1310.2 A condition of things similar to that which in 1258 had brought on the Barons' War seems to have suggested substantially the same procedure as was then employed. The baronial assembly, which in March met the king in arms, resolved that the affairs of the kingdom should be intrusted for a year to a body of twenty-one Ordainers, to The Lords be chosen by themselves, who should ordain such things as 1310. should be "to the honor and advantage of Holy Church, to the honor of the king, and to his advantage and that of the people, according to the oath which the king took at his coronation." In a parliament composed of the three estates held in London in August, 1311, the Ordainers, after reporting the six ordinances, which they had published with the king's confirmation in August, 1310,5 issued thirty-five additional articles of like tenor, designed to carry out more completely a general reform of existing abuses. In the additional articles (xiii.-xviii.) express provision was made that all the great officers of state were to be appointed by the king with the counsel and consent of the baronage; and they (xxxix.) were to be sworn in parliament. And it was further provided (ix.) that the king was not to declare war, to summon forces, or to go out of the realm, without the consent of the baronage in parliament. 1 See above, pp. 419–423. 2 The inferior clergy and the commons were not summoned. York was first designated as the meeting-place, but a change was afterwards made to Westminster. See Parl. Writs, i. pp. 40, 41; Stubbs, Const. Hist., vol. ii. 325, and note 5. Cf. also, pp. 326330. Although Hallam's text (M. A., vol. iii. p. 43) would indicate a belief upon his part that the commons coöperated in the proceedings, in a note he p. The right thus asserted and As to the election, see Fadera, ii. Parl. Writs, II., ii. p. 27. Statutes, i. p. 157 seq.; Rot. Parl., Right of the baron age to the exclusive control of the royal administration. Growing power and influence of the com mons. They win the full iberation in the reign of Edward !II.; maintained by the baronage to control all ministerial appointments, as well as the great questions of war and peace, clearly discloses the fact that the nobles were still regarded not only as the sole counsellors of the crown, but as the real representatives of the nation and the guardians of its privileges. The parliamentary status of the commons, down to this point, seems to have been but little better than that of mere tax-payers and petitioners for the redress of grievances. From this time, however, the parliamentary position of the commons passes through a marked transformation; they gradually cease to follow the lead of the barons, who in their turn learn how to follow the lead of the commons. By the statute of 1322, which provided that all matters to be established touching king or kingdom "should be 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,"1- a full and final recognition was made of the right of the commons to participate in all forms of legislation. But the full right of deliberation in parliament right of de- did not pass to the representatives of the shires and towns now fast becoming welded into a definitely organized body under the name of the commons- until the following reign of Edward III., whose financial necessities, occasioned by his expensive foreign wars, rendered him continually dependent upon their bounty. At the very beginning of Edward's reign, during the administration of Isabella and Mortimer, the treaty of peace with Scotland was settled with the counsel and consent of the three estates, - prelates, earls, barons, and commons.2 As soon as Edward's personal rule begins we find him, in 1331, consulting parliament on the question of war or peace with France. On these occasions not only the magnates but the knights of the shire, who now deliberate apart, are consulted. In 1336 parliament advises the king to declare war against Scotland, because he "could no longer with honor put up with the wrongs and injuries daily done to him and his subjects by the Scots." When in 1338 the prolonged struggle known as the Hundred Years' War opens with France, the king declares that he undertakes it with the assent to the treaty of peace with Scot Jand, and are con sulted as to the war with France. Hundred Years' 1 See above, p. 494. 2 Rot. Parl., i. p. 442; Fœdera, ii. p. 730. 8 Rot. Parl., ii. p. 61. assent of the nobles, but at the earnest solicitation of the commons,1- it is called, in fact, "the war which our lord the king has undertaken against his adversary of France by common assent of all the lords and commons of his realm in divers parliaments." 2 In the parliament of 1341, when more money is asked with which to carry on the war, the lords and commons unite in the demand that commissioners be appointed to audit the accounts of those who receive the money in behalf of the king, and that the great officers of state be appointed by the king in parliament, and there sworn to obey the law. Although Edward by an act of duplicity afterwards repudiated these concessions, the vital principle had been announced by both lords and commons, fighting side by side in a common cause, that the ministers who conduct the royal administration are responsible not only to the king, but to the nation in parliament. appropriate purposes. As incidents to the substantive right to supervise and Right to control the royal administration, which the assembly of the supplies estates fully established during the reign of Edward III., to special should be noted the right to audit the public accounts, and to appropriate the supplies to special purposes. Although the germ of the right last named can be discovered as early as the reign of Henry III. in the arrangements then made for the collection and custody of particular grants intrusted to officers specially appointed for that purpose, the right of appropriation as a parliamentary right was not clearly established until the middle of the fourteenth century. In 1346 and 1348 the practice distinctly appears in the provisions then made that the money collected from the northern counties should be applied to defence against the Scots; and more distinctly still in 1353, when a subsidy on wool was granted with the express direction that it should be applied exclusively to the prosecution of the war with France. In 1380 the commons pray that the aid granted may be expended in defence of the kingdom; and in 1390 a part of the custom on wool was appropriated to the expenses of the 1 Fœdera, ii. p. 1015. 2 Cf. Hallam, M. A., vol. iii. p. 53. 8 Rot. Parl., ii. pp. 128, 130. 4. See Select Charters, 2d ed., pp. 355, 364, 368. 5 Rot. Parl., ii. p. 161, art. 15; p. 202, art. 7. • Rot. Parl., ii. p. 252. 7 Rot. Parl., iii. pp. 90, 93, 94. |