ojssUf - >; c ;p * ¥f€ - *CV m. ■•• Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924031497740 SOURCE PROBLEM THE GROWTH OF THE POWERS OF PARLIAMENT ENGLISH HISTORY (Hist. 31) CORNELL UNIVERSITY JANUARY, 1921 PRINTED, NOT PUBLISHED 5 NOTES BY. WAY OF INTRODUCTION In 1297 the King promises not to take " aids, tasks, and prises." This should be compared with articles 12 and 14 of Magna Carta, of which it takes the, place. Tasks meant much the same as aids in article 12 of Magna Carta, i. e. other aids asked by the King above and beyond the three feudal aids. Prises meant customs. Parliament was beginning its work of closing up all the finan- cial loopholes by which the King could raise money without its consent. The King was being forced to make unpleasant promises that he would not take certain specified taxes without consent. His effort is going to be to find other ways not yet specified, either direct or indirect. He breaks his promises and finds ways of getting money which had not been mentioned in 1297. Find out from the documents just what these were. Step by step parliament closed up these loopholes. It was not easily done. Precedent had to be piled upon precedent before the King would finally give up. A maltolte was literally a " bad tax," that is an evil custom upon wool, over and above what the King had a right to levy. Such an unusual and unjustified tax had been levied by Edward I and was to be levied by Edward III as well. Perambulation of the forests is mentioned in the documents. Perambulation means literally a walking around, i. e. a survey of the extent of the forests. Forests were royal preserves sub- ject to a special kind of law and courts. It was the King's tendency to extend them, and that became a grievance of the people, who demanded that they be limited to their old boundaries. Before there had been a parliament the King had pronounced laws by consent of his great Council i. e. of the larger Curia Regis. By the thirteenth centnry (says A. B. White, who is followed a good deal here) there had grown up a distinction as to making laws. The King could by himself modify old laws, but new laws had to be made with the consent of the barons, i. e. of ttie larger Curia Regis. When knights and burgesses were added to the larger Cutja Regis, practice as to making laws became very confused. Sometimes the King used one 3 group to make one kind of a law, and another group to make another. For example, he called the burgesses together to make the law about merchants, he called the barons in to pass the feudal law about subinfeudation. The notion that the whole parliament should be consulted about making laws was very- slow in developing. The first recognition of the part of the whole parliament is found in 1322. But this statement was still more theory than practice. Slowly through the century that followed it was to become regular practice. But even when it did, that meant only that laws suggested by the King and his Privy Council were to be confirmed by all of parliament. It was another problem for the whole of parliament to win the right of initiating legislation. That right grew out of the custom of petitions. Any subject could make a petition to the King, petitions which came to be dealt with at meetings of parliament. Any estate in parliament could also make petitions. It be- came customary for the Commons to make petitions to the King for redress of grievances. The knights and burgesses as they came up from their constituents were likely to have many grie- vances to complain about. The Commons presented their peti- tions to the King, who might or might not grant them. When he did grant them it was with the consent of the whole parlia- ment, usually. Now in order to get their petitions granted the Commons began to use as a lever their increasing power over money. Never was there a session of parliament, but the King asked for money, much of which was to come from the Com- mons. The Commons began to go slow about their grants of money, and when request was made, to say that they would think about the matter and then proceed to urge their grie- vances. The King's Chancellor would press for money and the Commons would talk of their grievances. Slowly the Commons set going the procedure of conditional grants. We will give you so much, they said, if you will redress these specified grie- vances. This method proved so useful to them that it became a regular thing by and by. More slowly developed the idea that the Commons made all their grants at the end of the session after all their grievances had been redressed. But the King found ways of dodging the will of parliament, as expressed in their petitions for redress of grievances. At first the Commons would merely mention their grievances and leave it to the King's officials to redress them (usually through letters 4 of instructions to the sheriffs and justices throughout England.) But the royal officials were very likely to go through the forms of redressing grievances, and to do no more. Sometimes the King's instructions sent out were vague and meaningless. Once or twice the King left out (purposely as was suspected) the important words in effecting the change. Hence parliament found it must be more precise. Certain members authorized to stay behind after parliament were to draft the law which re- dressed the grievance. But this did not always prove enough. The King's officials were likely to insert little phrases which made the bill less effective. Hence parliament began to put their petitions to the King in this form, that the grievance was to be redressed in the following words, which were then put down. This was called the Bill. The King was asked to agree to those exact words and that those exact words should be put upon the rolls of parliament. Such words finally accepted by the King and put upon the rolls constituted a statute. Ah ordinance was something less than a statute (find out from the documents what it was; also look in Cross, p. 210). Sometimes the King dodged the will of parliament by making its bill into an ordinance rather than a statute. This parlia- ment proceeded to guard against. The King also tried annulling statutes. Then what did parlia- ment do? How did it close up the loopholes and gain complete control over legislation, as over the purse-strings ? QUESTIONS 1 . How was the Confirmation of Charters an improvement over Articles 12 and 14 in Magna Carta (see Source-book). What loopholes were still left the King, to raise money without consent of parliament (look ahead) ? 2. Did the King live up to his promises in 1297. In what ways and when did he break them ? How directly ? How indirectly ? 3. Point out different times in which parliament tried to close the direct loophole. The indirect. By what time may they be said finally to have succeeded ? 4. When does the King first consult parliament as to peace and war ? Why does he consult them ? Did this right of passing on peace and war become a fixed right of parliament (remember this question for later in this course). 5 5. When does parliament first claim complete right over leg- islation ? Was the claim justified at that time? 6. Who proposed laws to parliament ? How did parliament first begin to propose laws themselves (see Cross also, p. 210). How did they persuade the King to agree to them ? 7. Do you find any cases where an ordinance is" changed into a statute ? What was an ordinance ? Who made it ? When does the distinction between an ordinance and statute first clearly appear ? Find a case where a petition of the Commons is on' its way to becoming a statute. ' 8. What is the latest date when the King of his own power does away with a statute ? 9. Point out a case where parliament takes into its own hands the right of naming public officials. Did it retain this right ? Had there ever been an attempt earlier to name the King's Councillors (see Cross, 151) ? When do they first put men out of office ? Where is the earliest hint of the claim by parliament to put men out of office ? What does this power of putting men out of office come to be called technically ? What becomes the formal method of procedure ? Does this method become perman- ent (see Cross, 235, 258, 444-45) ? Is it used in America? 10. Find an instance between 1338 and 1348 where parliament is more anxious to keep the precedents in favor of its general rights than it is to win the particular victory ; where it indeed gives way to the King on the special issue in order to have the records on the books right. 11. When does parliament begin to ask for audit of accounts? Does this continue ? Cite cases. 12. When does parliament begin appropriating money for particular purposes, so that the money shall be spent for nothing else? 13. When does the principle of redress of grievances before money grants first appear ? At what time in the session does an American legislative body make its grants ? 14. When do you first find a grant made upon conditions? Do you find earlier cases that amount to the same thing ? 15. Make a list of the powers which parliament has gained by end of the period covered by these documents. What powers has it tried to gain and failed to gain ? Parliament op 1297 "Moreover we have granted . . - for no business from henceforth we shall- take of our realm such manner of aids, tasks, nor prises, but by the common assent of the realm and for the common profit thereof, saving the ancient aids and prises due and accustomed. And so much as the more part of the commonalty of the realm find themselves sore grieved with the maltolte of wool i.e. to wit a toll of forty shillings for every sack of wool . . . we at their requests have clearly released it and have granted that we will not take (such things) nor any other without their common assent and good will, saving to us and our heirs the custom of wools, skins and leather granted before by the commonalty aforesaid." — " Confirmation of Charters." Statutes 0/ the Realm I, 123. The Parliament of 1300 " The King of England held a parliament at Stamford to which gathered the earls and barons with horses and arms, in order that . . . they might force from the King the execution of the Charter of the Forests which had been so far put off." Trivet, Annals, 379. The King grants it. "He (the King) held his parliament ... at Stamford . . . and the great men . . . gave warning that the forest laws had not been carried out and indeed in some places not even a begin- ning had been made. When words arose and secret threats were uttered the King became afraid and with soft and gentle speeches soothed them." Walter of Hemingford I, 171. Parliament complains that the King has not carried out the Perambulation of the Forests, as he promised to do that he suffers the great Charter to be forgotten, and that his Treasurer has-" overthrown old usages." " They pray him in love to dismiss this man And by common consent appoint another." The King replies angrily and continues ' ' Wherefore I grant you the right to examine And by twenty-six men who will give judgement If I can yield to your petitions . . . On another side 1 say to yon that I am without money Of which I must have aid of my land If I am to recommence the war of Scotland." 7 The twenty-six consult and urge the King to be courteous "But he threw so much of his grace into it that all agree After Michaelmas to raise for the King's use The fifteenth penny in exchange for well confirming The charter of liberties without abating anything And for fixing exact bounds for the perambulation Throughout the kingdom without sparing anyone And they agree to go to the war of Scotland. Of the dispute about Gascony they wait messengers. ' ' Pierre de Langtoft II, 329-335. Parliament at Lincoln, 1301 " At the opening of the assembly, Roger de Brabazon (Secre- tary) . . . made them an excellent speech on the King's be- half." The King has used the grant of parliament, but because of the Scottish incursion and the " malicious contrivance of the French " he desires a fifteenth of their temporal estates. " Whereupon the nobility and the Commons began to murmur both by reason of the late frequent payments of tenths aud fif- teenths as also because they had so often been disappointed of the long expected Perambulations of the Forests." They com- plain of the oppressions of the King's officers and "required that the ancient liberties contained in the Magna Carta be better observed.", The King delays to answer. After four days he sends word : ' ' That he is ready, to grant and confirm whatever they could in reason ask or desire." He confirms formally the Perambulation, the Charter of the Forests, and Magna Carta. ' ' He so far obliged both the nobility and the Commons that they were ready to grant him a fifteenth part of all their mov- able goods." Tyrell, Hist, of England Edward I to Rich. II., Ill, 144. Parliament of 1304 "Upon his return out of Scotland, being in great want of money, he (Edward I) imposed a tallage of the sixth penny . . . upon his demesne cities and boroughs." Tyrrell, III, 158. Parliament of 1309 "As early as 2 Edward II (1308) a twenty-fifth was granted under the conditions that the King should redress 8 grievances which were laid before hL" 1 which he promised to do." Gneist, Const' I Hist. II, 14 8 Parliament op 131 i " We do ordain that the King shall hold a parliament once in a year, or twice if need be, and that in a convenient place." Statutes of the Realm, I, 169. See also Rotuli Parliamentorum , I, 285. Parliament of 131 i. The New Ordinances Art. III. "Also new customs have been levied and the old .enhanced, as upon wools, cloths, wines, . . . and other . ' things, whereby the merchants come more seldom, and the for- eign merchants abide longer than they were wont to do, by which abiding things become more dear than they were wont to be . . . we do ordain that all manner of customs and imposts levied since the coronation of Edward, son of King Henry, be entirely put out and altogether extinguished forever . . . saving nevertheless to the King the custom of wools, woolfells and leather, i.e., to say for each sack of wool, half a mark, and for three hundred woolfels half a mark, and for a last of leather one mark." Statutes of the Realm, I, 157. Parliament of 13 15 The Parliament gives the King a twentieth. " Which tax when it came to be raised in Staffordshire and Shropshire, some dissatisfied people refused to pay and hindered the collectors appointed by the King from gathering it, pretend- ing that it was granted under certain conditions, to wit, that he would cause the Great Charter of the liberties of England and the Charter of the Forest with the Ordinances lately made by the Prelates, Earls and Barons, and the Perambulations of the Forest to be observed, which were not then duly observed." The King was much displeased seeing that he had commanded them to be kept. Tyrell III, 263. Parliament of 13 19 ' ' In that year straightway after Easter a parliament was held at York where it was unanimously agreed that our I,ord the King and all his barons should journey towards Scotland in the next month after the feast of St. John the Baptist." Gesta Edwardi de Carnarvan in Chronicles j Edward I -. it .> r* '- few w : JL ill