Parliament of England

The origins of Parliament can be traced to the 10th century when a unified Kingdom of England was forged from several smaller kingdoms. In Anglo-Saxon England, the king would hold deliberative assemblies of nobles and prelates called witans. These assemblies numbered anywhere from twenty-five to hundreds of participants, including bishops, abbots, ealdormen, and thegns. Witans met regularly during the three feasts of Christmas, Easter and Whitsun and at other times. In the past, kings interacted with their nobility through royal itineration, but the new kingdom's size made that impractical. Having nobles come to the king for witans was an important alternative to maintain control of the realm.[2]

Witans served several functions. They appear to have had a role in electing kings, especially in times when the succession was disputed. They were theatrical displays of kingship in that they coincided with crown-wearings. They were also forums for receiving petitions and building consensus among the magnates. Kings dispensed patronage, such as granting bookland, and these were recorded in charters witnessed and consented to by those in attendance. Appointments to offices, such as to bishoprics or ealdormanries, were also made during witans. In addition, important political decisions were made in consultation with witans, such as going to war and making treaties. Witans also helped the king to produce Anglo-Saxon law codes and acted as a court for important cases (such as those involving the king or important magnates).[3]

After the Norman Conquest of 1066, William the Conqueror (r. 1066–1087) continued the tradition of summoning assemblies of magnates to consider national affairs, conduct state trials, and make laws; although legislation now took the form of writs rather than law codes. These assemblies were called magnum concilium (Latin for "great council").[4] While kings had access to familiar counsel, this private advice could not replace the need for consensus building, and overreliance on familiar counsel could lead to political instability. Great councils were valued because they "carried fewer political risks, allowed responsibility to be more broadly shared, and drew a larger body of prelates and magnates into the making of decisions".[5]

The council's members were the king's tenants-in-chief. The greater tenants, such as archbishops, bishops, abbots, earls, and barons were summoned by individual writ, but sometimes lesser tenants[note 1] were also summoned by sheriffs.[7] Politics in the period following the Conquest (1066–1154) was dominated by about 200 wealthy laymen, in addition to the king and leading clergy. High-ranking churchmen (such as bishops and abbots) were important magnates in their own right. According to Domesday Book, the English church owned between 25% and 33% of all land in 1066.[8]

Traditionally, the great council was not involved in levying taxes. Kings funded their government through royal land revenues, feudal aids and incidents, the profits of royal justice, and the traditional land tax or geld (discontinued after 1162). By the end of Henry II's reign (1154–1189), however, the Crown needed new sources of revenue to pay for the Anglo-French wars fought between the Plantagenet and Capetian dynasties. Taxes on moveable property (personal property and rents) were developed that applied to everyone in England. In 1188, Henry II set a precedent when he applied to the great council for consent to levy the Saladin tithe.[9]

The burden imposed by national taxation and the likelihood of resistance made consent politically necessary. It was convenient for kings to present the great council of magnates as a representative body capable of consenting on behalf of all within the kingdom. Increasingly, the kingdom was described as the communitas regni (Latin for "community of the realm") and the barons as their natural representatives. But this development also created more conflict between kings and the baronage as the latter attempted to defend what they considered the rights belonging to the king's subjects.[10]

King John (r. 1199–1216) alienated the barons by his partiality in dispensing justice, heavy financial demands and abusing his right to feudal incidents, reliefs, and aids. In 1215, the barons forced John to abide by a charter of liberties similar to charters issued by earlier kings (see Charter of Liberties).[11] Known as Magna Carta (Latin for "Great Charter"), the charter was based on three assumptions important to the later development of Parliament:[12]

1. the king was subject to the law
2. the king could only make law and raise taxation (except customary feudal dues) with the consent of the community of the realm
3. that the obedience owed by subjects to the king was conditional and not absolute

While the clause stipulating no taxation "without the common counsel" was deleted from later reissues, it was nevertheless adhered to by later kings. Magna Carta transformed the feudal obligation to advise the king into a right to consent. While it was the barons who made the charter, the liberties guaranteed within it were granted to "all the free men of our realm".[13] The charter was promptly repudiated by the king, which led to the First Barons' War,[14] but Magna Carta would gain the status of fundamental law during the reign of John's successor.[15]

After the 1230s, the normal meeting place for Parliament was fixed at Westminster. Parliaments tended to meet according to the legal year so that the courts were also in session: January or February for the Hilary term, in April or May for the Easter term, in July, and in October for the Michaelmas term.[18]

Most parliaments had between forty and eighty attendees.[19] Meetings of Parliament always included:[1][20]

• the king
• chief ministers and other ministers (great officers of state, justices of the King's Bench and Common Bench, and barons of the exchequer)
• members of the king's council
• ecclesiastical magnates (archbishops, bishops, abbots, priors)
• lay magnates (earls and barons)

The lower clergy (deans, cathedral priors, archdeacons, parish priests) were occasionally summoned when papal taxation was on the agenda. Beginning around the 1220s, the concept of representation, summarised in the Roman law maxim quod omnes tangit ab omnibus approbetur (Latin for "what touches all should be approved by all"), gained new importance among the clergy, and they began choosing proctors to represent them at church assemblies and, when summoned, at Parliament.[21]

As feudalism declined and the gentry and merchant classes increased in influence, the shires and boroughs were recognised as communes (Latin communitas) with a unified constituency capable of being represented by knights of the shire and burgesses. Initially, knights and burgesses were summoned only when new taxes were proposed so that representatives of the communes (or "the Commons") could report back home that taxes were lawfully granted.[22][23] The Commons were not regularly summoned until the 1290s,[24] after the so-called "Model Parliament" of 1295. Of the thirty parliaments between 1274 and 1294, knights only attended four and burgesses only two.[25]

Early parliaments increasingly brought together social classes resembling the estates of the realm of continental Europe: the landed aristocracy (barons and knights), the clergy, and the towns. Historian John Maddicott points out that "the main division within parliament was less between lords and commons than between the landed and all others, lower clergy as well as burgesses".[26]

Specialists could be summoned to Parliament to provide expert advice. For example, Roman law experts were summoned from Cambridge and Oxford to the Norham parliament of 1291 to advise on the disputed Scottish succession. At the Bury St Edmunds parliament of 1296, burgesses "who best know how to plan and lay out a certain new town" were summoned to advise on the rebuilding of Berwick after its capture by the English.[27]

Parliament—or the "High Court of Parliament" as it became known—was England's highest court of justice. A large amount of its business involved judicial questions referred to it by ministers, judges, and other government officials.[28] Many petitions were submitted to Parliament by individuals whose grievances were not satisfied through normal administrative or judicial channels.[29] As the number of petitions increased, they came to be directed to particular departments (chancery, exchequer, the courts) leaving the king's council to concentrate on the most important business. Parliament became "a delivery point and a sorting house for petitions".[30] From 1290 to 1307, Gilbert of Rothbury was placed in charge of organising parliamentary business and recordkeeping—in effect a clerk of the parliaments.[31]

Kings could legislate outside of Parliament through legislative acta (administrative orders drafted by the king's council as letters patent or letters close) and writs drafted by the chancery in response to particular court cases.[32] But kings could also use Parliament to promulgate legislation. Parliament's legislative role was largely passive—the actual work of law-making was done by the king and council, specifically the judges on the council who drafted statutes.[33] Completed legislation was then presented to Parliament for ratification.[34]

Kings needed Parliament to fund their military campaigns.[35] On the basis of Magna Carta, Parliament asserted for itself the right to consent to taxation, and a pattern developed in which the king would make concessions (such as reaffirming liberties in Magna Carta) in return for tax grants.[36] Withholding taxation was Parliament's main tool in disputes with the king. Nevertheless, the king was still able to raise lesser amounts of revenue from sources that did not require parliamentary consent, such as:[37][38]

• county farms (the fixed sum paid annually by sheriffs for the privilege of administering and profiting from royal lands in their counties)
• profits from the eyre
• tallage on the royal demesne, the towns, foreign merchants, and most importantly English Jews
• scutage
• feudal dues and fines
• profits from wardship, escheat, and vacant episcopal sees

Henry III (r. 1216–1272) became king at nine years old after his father, King John, died during the First Barons' War. During the king's minority, England was ruled by a regency government that relied heavily on great councils to legitimise its actions. Great councils even consented to the appointment of royal ministers, an action that normally was considered a royal prerogative. Historian John Maddicott writes that the "effect of the minority was thus to make the great council an indispensable part of the country's government [and] to give it a degree of independent initiative and authority which central assemblies had never previously possessed".[39]

The regency government officially ended when Henry turned sixteen in 1223, and the magnates demanded the adult king confirm previous grants of Magna Carta made in 1216 and 1217 to ensure their legality. At the same time, the king needed money to defend his possessions in Poitou and Gascony from a French invasion. At a great council in 1225, a deal was reached that saw Magna Carta and the Charter of the Forest reissued in return for taxing a fifteenth (7 percent) of movable property. This set a precedent that taxation was granted in return for the redress of grievances.[40]

In 1232, Peter des Roches became the king's chief minister. His nephew, Peter de Rivaux, accumulated a large number of offices, including lord keeper of the privy seal and keeper of the wardrobe; yet, these appointments were not approved by the magnates as had become customary during the regency government. Under Roches, the government revived practices used during King John's reign and that had been condemned in Magna Carta, such as arbitrary disseisins, revoking perpetual rights granted in royal charters, depriving heirs of their inheritances, and marrying heiresses to foreigners.[41]

Both Roches and Rivaux were foreigners from Poitou. The rise of a royal administration controlled by foreigners and dependent solely on the king stirred resentment among the magnates, who felt excluded from power. Several barons rose in rebellion, and the bishops intervened to persuade the king to change ministers. At a great council in April 1234, the king agreed to remove Rivaux and other ministers. This was the first occasion in which a king was forced to change his ministers by a great council or parliament. The struggle between king and Parliament over ministers became a permanent feature of English politics.[42]

Thereafter, the king ruled in concert with an active Parliament, which considered matters related to foreign policy, taxation, justice, administration, and legislation. January 1236 saw the passage of the Statute of Merton, the first English statute. Among other things, the law continued barring bastards from inheritance. Significantly, the language of the preamble describes the legislation as "provided" by the magnates and "conceded" by the king, which implies that this was not simply a royal measure consented to by the barons.[43][44] In 1237, Henry asked Parliament for a tax to fund his sister Isabella's dowry. The barons were unenthusiastic, but they granted the funds in return for the king's promise to reconfirm Magna Carta, add three magnates to his personal council, limit the royal prerogative of purveyance, and protect land tenure rights.[45]

But Henry was adamant that three concerns were exclusively within his royal prerogative: family and inheritance matters, patronage, and appointments. Important decisions were made without consulting Parliament, such as in 1254 when the king accepted the throne of the Kingdom of Sicily for his younger son, Edmund Crouchback.[46] He also clashed with Parliament over appointments to the three great offices of chancellor, justiciar, and treasurer. The barons believed these three offices should be restraints on royal misgovernment, but the king promoted minor officials within the royal household who owed their loyalty exclusively to him.[47]

In 1253, while fighting in Gascony, Henry requested men and money to resist an anticipated attack from Alfonso X of Castile. In a January 1254 Parliament, the bishops themselves promised an aid but would not commit the rest of the clergy. Likewise, the barons promised to assist the king if he was attacked but would not commit the rest of the laity to pay money.[48] For this reason, the lower clergy of each diocese elected proctors at church synods, and each county elected two knights of the shire. These representatives were summoned to Parliament in April 1254 to consent to taxation.[49] The men elected as shire knights were prominent landholders with experience in local government and as soldiers.[50] They were elected by barons, other knights, and probably freeholders of sufficient standing.[51]

By 1258, the relationship between the king and the baronage had reached a breaking point over the "Sicilian Business", in which Henry had promised to pay papal debts in return for the pope's help securing the Sicilian crown for his son, Edmund. At the Oxford Parliament of 1258, reform-minded barons forced a reluctant king to accept a constitutional framework known as the Provisions of Oxford:[52]

• The king was to govern according to the advice of an elected council of fifteen barons.
• The baronial council appointed royal ministers (justiciar, treasurer, chancellor) to serve for one-year terms.
• Parliament met three times a year on the octave of Michaelmas (October 6), Candlemas (February 3), and June 1.
• The barons elected twelve representatives (two bishops, one earl and nine barons) who together with the baronial council could act on legislation and other matters even when Parliament was not in session as "a kind of standing parliamentary committee".[53]

Parliament now met regularly according to a schedule rather than at the pleasure of the king. The reformers hoped that the provisions would ensure parliamentary approval for all major government acts. Under the provisions, Parliament was "established formally (and no longer merely by custom) as the voice of the community".[54]

The theme of reform dominated later parliaments. During the Michaelmas Parliament of 1258, the Ordinance of Sheriffs was issued as letters patent that forbade sheriffs from taking bribes. At the Candlemas Parliament of 1259, the baronial council and the twelve representatives enacted the Ordinance of the Magnates. In this ordinance, the barons promised to observe Magna Carta and other reforming legislation. They also required their own bailiffs to observe similar rules as those of royal sheriffs, and the justiciar was given power to correct abuses of their officials. The Michaelmas Parliament of 1259 enacted the Provisions of Westminster, a set of legal and administrative reforms designed to address grievances of freeholders and even villeins, such as abuses related to the murdrum fine.[55]

Henry III made his first move against the baronial reformers while in France negotiating peace with Louis IX. Using the excuse of his absence from the realm and Welsh attacks in the marches, Henry ordered the justiciar, Hugh Bigod, to postpone the parliament scheduled for Candlemas 1260. This was an apparent violation of the Provisions of Oxford; however, the provisions were silent on what should happen if the king were outside the kingdom. The king's motive was to prevent the promulgation of further reforms through Parliament. Simon de Montfort, a leader of the baronial reformers, ignored these orders and made plans to hold a parliament in London but was prevented by Bigod. When the king arrived back in England he summoned a parliament which met in July, where Montfort was brought to trial though ultimately cleared of wrongdoing.[56][57]

In April 1261, the pope released the king from his oath to adhere to the Provisions of Oxford, and Henry publicly renounced the Provisions in May. Most of the barons were willing to let the king reassume power provided he ruled well. By 1262, Henry had regained all of his authority, and Montfort left England. The barons were now divided mainly by age. The elder barons remained loyal to the king, but younger barons coalesced around Montfort, who returned to England in the spring of 1263.[58]

The royalist barons and rebel barons fought each other in the Second Barons' War. Montfort defeated the king at the Battle of Lewes in 1264 and became the real ruler of England for the next twelve months. Montfort held a parliament in June 1264 to sanction a new form of government and rally support. This parliament was notable for including knights of the shire who were expected to deliberate fully on political matters, not just assent to taxation.[59]

The June Parliament approved a new constitution in which the king's powers were given to a council of nine. The new council was chosen and led by three electors (Montfort, Stephen Bersted, bishop of Chichester, and Gilbert de Clare, earl of Gloucester). The electors could replace any of the nine as they saw fit, but the electors themselves could only be removed by Parliament.[59][60]

Montfort held two other Parliaments during his time in power. The most famous—Simon de Montfort's Parliament—was held in January 1265 amidst threat of a French invasion and unrest throughout the realm. For the first time, burgesses (elected by those residents of boroughs or towns who held burgage tenure, such as wealthy merchants or craftsmen)[61] were summoned along with knights of the shire.[62]

Montfort was killed at the Battle of Evesham in 1265, and Henry was restored to power. In August 1266, Parliament authorised the Dictum of Kenilworth, which nullified everything Montfort had done and removed all restraints on the king.[63] In 1267, some of the reforms contained in the 1259 Provisions of Westminster were revised in the form of the Statute of Marlborough passed in 1267. This was the start of a process of statutory reform that continued into the reign of Henry's successor.[64]

A 16th-century depiction of the Parliament of King Edward I.The lords spiritual are seated to the king's right, the lords temporal to his left, and in the centre sit the justices and law officers.

Edward I (r. 1272–1307) learned from the failures of his father's reign the usefulness of Parliament for building consensus and strengthening royal authority.[65] Parliaments were held regularly throughout his reign, generally twice a year at Easter in the spring and after Michaelmas in the autumn.[66]

Under Edward, the first major statutes amending the common law were promulgated in Parliament:[67][27]

• Statute of Westminster I (1275)
• Statute of Gloucester (1278)
• Statute of Mortmain (1279)
• Statute of Westminster II (1285)
• Statute of Winchester (1285)
• Statute Quia Emptores (1290)
• Statute Quo Warranto (1290)

The first Statute of Westminster required free elections without intimidation. This act was accompanied by the grant of a tax on England's wealthy wool trade—a half-mark (6s 8d) on each sack of wool exported. It became known as the magna et antiqua custuma (Latin: "great and ancient custom") and was granted to Edward and his heirs, becoming part of the Crown's permanent revenue until the 17th century.[68][69]

In 1294, the Anglo-French War broke out over control of Gascony. Edward's need for money to finance the war led him to take arbitrary measures. He ordered the seizure of merchants' wool, which was only released after payment of the unpopular maltolt, a tax never authorised by Parliament. Church wealth was arbitrarily seized, and the clergy were further asked to give half of their revenues to the king. They refused but agreed to a smaller sum. Over the next couple years, parliaments approved new taxes, but it was never enough. More money was needed to put down a Welsh rebellion and win the First War of Scottish Independence.[70]

This need for money led to what became known as the "Model Parliament" of November 1295. In addition to magnates who were summoned individually, sheriffs were instructed to send two elected knights from each shire and two elected burgesses from each borough. The Commons had been summoned to earlier parliaments but only with power to consent to what the magnates decided. In the Model Parliament, the writ of summons invested shire knights and burgesses with power to provide both counsel and consent.[71]

By 1296, the King's efforts to recover Gascony were creating resentment among the clergy, merchants, and magnates. At the Bury St Edmunds parliament in 1296, the lay magnates and Commons agreed to pay a tax on moveable property. The clergy refused citing the papal bull Clericis Laicos, which forbade secular rulers from taxing the church without papal permission. In January 1297, a convocation of the clergy met at St Paul's in London to consider the matter further but ultimately could find no way to pay the tax without violating the papal bull.[72] In retaliation, the King outlawed the clergy and confiscated clerical property on 30 January. On 10 February, Robert Winchelsey, archbishop of Canterbury, responded by excommunicating anyone acting against Clericis Laicos.[73] Most clergy paid a fine for the restoration of their property that was identical to the tax requested by the King.[72]

At the Salisbury parliament of March 1297, Edward unveiled his plans for recovering Gascony. The English would mount a two front attack with the King leading an expedition to Flanders while other barons traveled to Gascony. This plan faced opposition from the most important noblemen—Roger Bigod, marshal and earl of Norfolk, and Humphrey Bohun, constable and earl of Hereford. Norfolk and Hereford argued that they owed the king military service in foreign lands but only if the king were present. Therefore, they would not go to Gascony unless the King went as well. Norfolk and Hereford were supported by around 30 barons, and the parliament ended without any decision. After the Salisbury parliament ended, Edward ordered the seizure of wool (see prise) and payment of a new maltolt.[74]

In July 1297, a writ declared that "the earls, barons, knights, and other laity of our realm" had granted a tax on moveables. In reality, this grant was not made by a parliament but by an informal gathering "standing around in [the king's] chamber".[75] Norfolk and Hereford drew up a list of grievances known as the Remonstrances, which criticized the king's demand for military service and heavy taxes. The maltolt and prises were particularly objectionable due to their arbitrary nature.[76] In August, Bigod and de Bohun arrived at the exchequer protesting that the irregular tax "was never granted by them or the community" and declared they would not pay it.[77]

The outbreak of the First War of Scottish Independence necessitated that both the king and his opponents put aside their differences. At the October 1297 parliament, the council agreed to concessions in the king's absence. In exchange for a new tax, the Confirmatio Cartarum reconfirmed Magna Carta, abolished the maltolt, and formally recognised that "aids, mises, and prises" needed the consent of Parliament.[78][79]

Edward soon broke the agreements of 1297, and his relations with Parliament remained strained for the rest of his reign as he sought further funds for the war in Scotland. At the parliament of March 1300, the king was forced to agree to the Articuli Super Cartas, which gave further concessions to his subjects.[80]

At the Lincoln parliament of 1301, the King heard complaints that the charters were not followed and calls for the dismissal of his chief minister, the treasurer Walter Langton. Demands for appointment of ministers by "common consent" were heard for the first time since Henry III's death. To this, Edward angrily refused, saying that every other magnate in England had the power "to arrange his household, to appoint bailiffs and stewards" without outside interference. He did offer to right any wrongs his officials had committed.[81] Notably, the petition on behalf of "the prelates and leading men of the kingdom acting for the whole community" was presented by Henry de Keighley, knight for Lanchashire. This indicates that knights were holding greater weight in Parliament.[82]

The last four parliaments of Edward's' reign were less contentious. With Scotland nearly conquered, royal finances improved and opposition to royal policies decreased. A number of petitions were considered at the parliament of February 1305 included ones related to crime. In response, Edward issued the trailbaston ordinance. The state trial of Nicholas Seagrave was conducted as part of this parliament as well. Harmonious relations continued between king and Parliament even after December 1305 when Pope Clement V absolved the King of his oath to adhere to Confirmatio Cartarum. The last parliament of the reign was held at Carlisle in 1307. It approved the marriage of the King's son to Isabella of France. Legislation attacking papal provisions and papal taxation was also ratified.[83]

One of the moments that marked the emergence of parliament as a true institution in England was the deposition of Edward II in January 1327. Even though it is debatable whether Edward II was deposed in parliament or by parliament, this remarkable sequence of events consolidated the importance of parliament in the English unwritten constitution. Parliament was also crucial in establishing the legitimacy of the king who replaced Edward II: his son Edward III.

Between 1352 and 1396, the House of Commons met in the chapter house of Westminster Abbey.[84]

In 1341 the Commons met separately from the nobility and clergy for the first time, creating what was effectively an Upper Chamber and a Lower Chamber, with the knights and burgesses sitting in the latter. This Upper Chamber became known as the House of Lords from 1544 onward, and the Lower Chamber became known as the House of Commons, collectively known as the Houses of Parliament.

The authority of parliament grew under Edward III; it was established that no law could be made, nor any tax levied, without the consent of both Houses and the Sovereign. This development occurred during the reign of Edward III because he was involved in the Hundred Years' War and needed finances. During his conduct of the war, Edward tried to circumvent parliament as much as possible, which caused this power structure to emerge.

The Commons came to act with increasing boldness during this period. During the Good Parliament of 1376, the Presiding Officer of the lower chamber, Peter de la Mare, complained of heavy taxes, demanded an accounting of the royal expenditures, and criticised the king's management of the military. The Commons even proceeded to impeach some of the king's ministers. The bold Speaker was imprisoned, but was soon released after the death of Edward III.

During the reign of the next monarch, Richard II, the Commons once again began to impeach errant ministers of the Crown. They insisted that they could control not only taxation but also public expenditure. Despite such gains in authority, however, the Commons still remained much less powerful than the House of Lords and the Crown.

It was in this period that the Palace of Westminster was established as the seat of the English Parliament. In 1548, the House of Commons was granted a regular meeting place by the Crown, St Stephen's Chapel. This had been a royal chapel. It was made into a debating chamber after Henry VIII became the last monarch to use the Palace of Westminster as a place of residence and after the suppression of the college there.

This room was the home of the House of Commons until it was destroyed by fire in 1834, although the interior was altered several times up until then. The structure of this room was pivotal in the development of the Parliament of England. While most modern legislatures sit in a circular chamber, the benches of the British Houses of Parliament are laid out in the form of choir stalls in a chapel, simply because this is the part of the original room that the members of the House of Commons used when they were granted use of St Stephen's Chapel.

This structure took on a new significance with the emergence of political parties in the late 17th and early 18th centuries, as the tradition began whereby the members of the governing party would sit on the benches to the right of the Speaker and the opposition members on the benches to the left. It is said that the Speaker's chair was placed in front of the chapel's altar. As Members came and went they observed the custom of bowing to the altar and continued to do so, even when it had been taken away, thus then bowing to the Chair, as is still the custom today.

The numbers of the Lords Spiritual diminished under Henry VIII, who commanded the Dissolution of the Monasteries, thereby depriving the abbots and priors of their seats in the Upper House. For the first time, the Lords Temporal were more numerous than the Lords Spiritual. Currently, the Lords Spiritual consist of the Archbishops of Canterbury and York, the Bishops of London, Durham and Winchester, and twenty-one other English diocesan bishops in seniority of appointment to a diocese.

The Laws in Wales Acts of 1535–42 annexed Wales as part of England and this brought Welsh representatives into the Parliament of England, first elected in 1542.