The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface
• Part 1: Representative Institutions In England, France, and Spain, From the Fifth to the Eleventh Century
• Lecture I
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25
• Lecture 26
• Part 2: Essays of Representative Government In England, From the Conquest Till the Reign of the Tudors
• Lecture 1
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25

LECTURE 17

Our attention has hitherto been directed only to the elements of which the Parliament was composed, and to the proceedings that took place at its formation, that is to say, to the process of election: we have now to consider another question; we must enquire what were the internal and external constitution and organisation of the Parliament thus composed.

The Parliament at the beginning of the fourteenth century was not divided, as at present, into the House of Lords and the House of Commons; nor did it, on the other hand, consist of a single body. Accounts vary regarding the date at which it assumed its present form. Carte fixes it in the seventeenth year of the reign of Edward III. (1344); the authors of the Parliamentary History, in the sixth year of the same reign (1333); Mr. Hallam in the first year of the reign of Edward III. (1327), or, perhaps, even in the eighth year of the reign of Edward II. (1315).

The principal cause of this diversity of opinion is the different circumstance with which each author connects the fact of the union of county and borough members into one single assembly. This fact is deduced by some from the date of their assembling together in the same place; by others from the period of their common deliberation; and by others again, from the union of their votes upon the same question. And as each of these circumstances occurred in one particular Parliament independently of the others, the period which Parliament first existed in its present form is carried back or forward according to the circumstance which is regarded as decisive in this respect. However this may be, it may be affirmed that the division of Parliament into two Houses—one comprising the lords or great barons individually summoned, and the other all the elected representatives of counties and boroughs; and both these houses deliberating and voting together in all matters of business—was not completely and definitively effected, until towards the middle of the fourteenth century. It is necessary to trace the steps by which this fact was gradually accomplished. This is the only way thoroughly to comprehend its nature and its causes.

Originally, as we have seen, all the immediate vassals of the king had the same right of repairing to Parliament and taking part in its deliberations. Mere knights, therefore, when they repaired thither, sat, deliberated, and voted, with the great barons.

When election was substituted for this individual right in the case of the knights of shires, and only those elected by the county-courts were entitled to attend the Parliament, they still continued to be members of the class to which they had previously belonged. Although elected and deputed not only by those knights who were immediate vassals of the king, but also by all the freeholders of their county, they continued to sit, deliberate, and vote, together with the great barons who were individually summoned.

The representatives of the boroughs, on the contrary, whose presence in Parliament was a novel circumstance (which was not connected with any anterior right exercised merely under a new shape), formed a distinct assembly from their first appearance in Parliament, sitting apart, deliberating and voting on their own account, and as thoroughly separated from the knights of the shire as from the great barons.

This separation is evident from the votes of Parliament at this period. At the Parliament held at Westminster under Edward I., in 1295, the earls, barons, and knights of the shire granted the king an eleventh part of their personal property, the clergy a tenth part, and the citizens and burgesses a seventh. In 1296, the former granted a twelfth part, and the latter an eighth. In 1305, the former gave a thirtieth part, and the clergy, the citizens, and burgesses a twentieth. Under Edward II., in 1308, the barons and knights granted one twentieth, the clergy a fifteenth, the citizens and burgesses a fifteenth. Under Edward III., in 1333, the knights of the shire granted a fifteenth, the same as the prelates and the nobles, and the citizens and burgesses a tenth; and yet the records of this Parliament expressly declare that the knights of the shire and the burgesses deliberated in common. In 1341, the prelates, earls and barons, on the one hand, and the knights of the shire on the other, granted a ninth of their sheep, lambs, andfleeces; and the burgesses, a ninth of all their personal property. In 1345, the knights of the shire granted two-fifteenths, the burgesses a fifth: the lords granted nothing but promised to follow the king in person. Thus, at this latter period, the knights of the shire no longer voted in common with the lords, but they still voted apart from the burgesses.

In 1347, the commons without distinction granted two-fifteenths, to be levied in two years in the cities, the boroughs, the ancient domains of the crown, and the counties. At this period, then, the fusion of the two elements of the Commons House was complete: and it continued so ever afterwards, although a few examples are still found of special taxes, voted by the representatives of the towns and boroughs alone in the case of customs, especially in 1373.

The original separation, then, was between the representatives of the counties and those of the boroughs. The recollections of feudal law allied the former to the great barons during more than fifty years. This separation was not confined solely to voting the supplies. Everything indicates, although it is nowhere proved by written evidence, that the knights of the shire and the representatives of the boroughs did not deliberate together any more on other affairs, either legislative or otherwise, which interested only one of the two classes. When mercantile interests were in question, the king and his council discussed them solely with the representatives of the towns and boroughs. Thus, there is reason to believe that the statute entitled The Statute of Acton-Burnel, passed in 1283, was enacted in this manner on the advice of the borough representatives alone, who met for this purpose at Acton-Burnel, whilst the knights of the shire sat with the great barons at Shrewsbury, to assist at the trial of David, Prince of Wales, then a prisoner. The separation of the two classes of representatives could therefore be carried thus far, that each class may have sat in different, though neighbouring towns.

When they sat in the same town, and especially at Westminster, the whole Parliament met together, most probably in the same chamber; but the great barons and knights of the shire occupied the upper end, and the borough representatives the lower part, of the chamber.

A distinction existed even among the borough members. Until the reign of Edward III., the representatives of those boroughs which formed part of the ancient domain of the crown constituted a separate class, and voted distinct supplies.

The division of Parliament, then, far from having originated in the forms which prevailed fifty years later, arose from principles altogether different. No idea then existed of truly general interests and a national representation. The particular interests which were of sufficient importance to take part in the government, intervened in it solely on their own account, and treated separately of their own affairs. Did the matter in hand relate exclusively to things in which the great barons appeared to be interested, and where the king required their assistance alone—they alone assembled and deliberated. Was the question one of modifications in the nature or mode of the transmission of feudal territorial property—the knights of the shire were summoned; and in this way the statute Quia emptores was enacted under Edward I. Were commercial interests concerned—the king treated of them with the borough representatives only. In these various cases, as in the matter of supplies, the deliberation and vote of the different classes of members of Parliament were distinct. These classes were formed in reference to their common interests, and took no part in each other’s affairs: and very rarely, probably never, at this period, was there any matter of sufficiently general and common importance to all, for all to have been summoned to deliberate and vote in common.

Thus the classification of society was perpetuated in the Parliament, and was the true principle of the division between the members of Parliament.

This state of things did not long continue, because the classification of society itself, in which it originated, also tended to its own effacement. The county members could not fail to separate themselves altogether from the great barons, and completely to combine with the borough representatives; and for the following reasons.

If the knights of the shire continued for some time to sit and vote with the great barons, this was merely the effect of old association, a relic of the ancient parity of their feudal position. This equality had already received a severe check by the substitution of election for individual right of presence. The cause which had led to this change continued at work; the disparity of importance and wealth between the great barons and plain knights of the shire went on increasing; the remembrance of feudal political right became weakened; and the social position of the knights of the shire daily became more different from that of the great barons. Their parliamentary position could not fail to follow the same course. All things combined to separate them more and more.

At the same time every circumstance tended to associate the representatives of the counties with those of the boroughs. They had the same origin, and appeared in Parliament by virtue of the same title—election. The tie which had attached the county elections to feudal right became progressively enfeebled. Furthermore, these two classes of deputies were alike correspondent to certain local interests. These interests were often identical or of the same nature. The inhabitants of the towns situated in a county, and the rural landowners of the county, were often engaged in the same affairs, and frequently entertained the same claims and desires. Besides, the county-courts were a common centre at which they habitually assembled together. Both the county and borough elections frequently took place in these courts. Thus, while certain causes increasingly separated the knights of the shire from the great barons, other causes approximated them more closely to the borough representatives. The analogy of social positions naturally hastened the fusion of parliamentary positions.

Lastly, the great barons constituted the chief council of the king. They often assembled around him in this capacity, and independently of any convocation of the elected deputies. By reason of their personal importance, they engaged in public affairs, and took part in the government in an habitual and permanent manner. The representatives of the counties and boroughs, on the contrary, interfered in the administration of public affairs only from time to time, in certain particular cases. They possessed rights and liberties, but they neither governed, nor contested with each other for the government, nor were they constantly associated in it. Their political position was in this respect the same, and was therefore very different from that of the great barons. All things tended, then, broadly to distinguish them from the latter class, and to connect them together.

The constitution of Parliament in its present form is the result of all the above causes. It was accomplished in the middle of the fourteenth century, although some instances of separation between the two elements of the House of Commons may subsequently be met with. These cases very soon disappeared and the union became complete. One fact alone remained, and that was the superiority in importance and influence of the county representatives over the representatives of boroughs, notwithstanding the habitual inferiority of their numbers. This fact, with the exception of only a few intervals, is met with throughout the whole course of the history of Parliament.

Thus was effected, on the one side, the separation of the Houses of Peers and Commons, and on the other, the union of the different elements of the House of Commons into a single assembly, composed of members exercising the same rights and voting on all occasions in common.

This is the great fact which has decided the political destiny of England. By themselves alone, the borough deputies would never have possessed sufficient power and importance to form a House of Commons capable of resisting sometimes the king, and sometimes the great barons, and of gaining an ever-increasing influence in public affairs. But the aristocracy, or rather, the feudal nation, being divided into two parts, and the new nation which was forming in the towns becoming combined with the county freeholders there, arose from the combination a competent and imposing House of Commons. There was a large body of the nation independent both of the king and of the great nobles. It happened also that the king could not, as in France, make use of the Commons to annihilate the political rights and privileges of the ancient feudal system, without substituting new liberties in their places. On the Continent, the enfranchisment of the Commons definitively led to absolute power. In England, a portion of the feudal class having united with the Commons, they combined to defend their liberties. On the other hand, the crown, supported by the great barons, who could not hope to set up as petty independent sovereigns in their own domains, possessed sufficient power to defend itself in its turn. The great barons consequently were obliged to rally round the throne. It is not true, though it is constantly reiterated, that the aristocracy and people have made common cause in England against the regal power, and that English liberty has arisen out of that circumstance. But it is true that the division of the feudal aristocracy having prodigiously augmented the power of the Commons, popular liberties at an early date possessed sufficient means of resistance, and the royal power received at the same time sufficient support.

Thus, considering the division of Parliament into two houses under the historic point of view, we see both how it was effected, and how favourable it has been to the establishment of popular liberty. Is this, then, all? Are this fact and its results mere accidents arising out of circumstances peculiar to England, and to the state in which society happened to be in the fourteenth century? Or is this division of legislative power into two houses a constitutional form intrinsically good, and everywhere as well founded in reason as it was, in England, in the necessities of the times? This question must be examined in order properly to appreciate the influence which this form has exercised on the development of the constitutional system in England, and rightly to understand its causes.