Dr. Almon Leroy Way, Jr.,

University President & Professor of Political Science
Important antecedents to the U.S. Constitution include many political institutions and practices which emerged in England during the nearly 500-year period of constitutional and political evolution from the Norman Conquest in 1088 to the beginning of the reign of Elizabeth I in 1558. At some point in the twelfth century, if not earlier, there began the process of legal and political evolution whereby feudal institutions in medieval England, over the succeeding centuries, slowly developed into what, by 1558, came to be widely perceived, among the politically attentive and aware in English society, as England's established and legitimate institutions of constitutional, representative government. Major political developments of future significance to the American constitutional system occurring along this nearly 500-year path of English constitutional and political evolution included:

    The appearance of English common law during the twelfth century and its subsequent growth and development over the succeeding centuries;

    The adoption of Magna Carta in 1215;

    The emergence of Parliament during the thirteenth century and its evolution, over the next two centuries, into a bicameral, representative legislative assembly;

    The emergence of the principle that Acts of Parliament are legislative statutes binding on all members of English society (including the Monarch) -- fixed laws of the land which not only regulate the conduct of ordinary subjects, but also control the actions and limit the authority of the Crown;

    The relations that existed between the Crown and Parliament during the reigns of the Tudor monarchs.

What is English Common Law? How did it come into being? How did it contribute to the development of English constitutionalism? What is the relevance of English common law to American legal development? What gave rise to Magna Carta? What are its key provisions? How did it affect the power of the Monarchy? What is Magna Carta's longterm significance, as regards English constitutional and political development? When and how did the English Parliament come into being? How did it grow in power during the Middle Ages? How did it evolve into a bicameral, representative legislative assembly? During the Medieval Period, what changes in English political culture were significant to the subsequent evolution of Parliament? How did the Crown and Parliament get along during the Tudor era? Why?

1. Common Law:

        Law Based on Judicial Precedent. The body of law known as "English Common Law" began to develop in England during the reign of King Henry II (1154-1189) and continued to grow and develop over the succeeding centuries. Common Law, as was indicated in Part Two of this course, is the body of legal principles and rules developed by English judges from custom and judicial precedent. The royal judges, functioning in the absence of written statutes governing the vast majority of cases they were called on to decide, rendered decisions based on customs common to the entire Kingdom and on their own personal perceptions of right and wrong, fairness, and what was in the best interests of the Crown, the Church, the nobility, or English society as a whole. When a royal judge decided a case involving an issue that had not previously been heard and resolved in the Courts of Common Law (the Royal Courts, or King's Courts), the decision of the judge almost invariably became a judicial precedent. That is, the judges were strongly inclined to follow the earlier decision in future cases which involved the same issue, deciding these cases in the same manner as the original case had been decided. In other words, the judges tended to observe the rule of stare decisis -- the principle that a prior decision on a given point of law should be adhered to in rendering judgement in any subsequent case involving the same or substantially the same legal question.

        Law Common to the Entire Kingdom. As the judges of the Royal Courts reapplied original decisions to identical or very similar questions in future cases, a body of general legal principles and rules evolved and became common to the whole of England. This body of judge-made law acquired the name "Common Law" because, unlike the law or custom of particular regions or local communities, it was law common to the entire Kingdom and all of its subjects. The fact that the Common Law was the same throughout the Realm distinguished it from the law administered in the feudal courts of the barons. The principles and rules of law administered by the county, borough, and feudal courts tended to differ from region to region and from locality to locality.

        A Uniform System of Justice Available to All Subjects and Administered by National Courts. Development of the Common Law in England entailed acceptance of a uniform system of justice throughout the Kingdom, with this justice available to all English subjects, rather than being reserved exclusively for the agents and favorites of the Crown. In addition, the Common Law involved operation of a system of national courts -- the Royal Courts, or Common Law Courts -- which administered justice throughout the Realm, hearing and deciding cases under the Common Law.

        Common Law and the Rights of Englishmen. Reflected in the development of the Common Law was great concern for security and protection of the "rights of Englishmen" -- the personal and property rights of the individual English subject. As the Common Law evolved, a set of criteria of what was right and fair in the mutual relations of individual Englishmen gradually took form and grew. This set of criteria was a practical definition of private rights -- the rights of private individuals in their relationships and interactions with one another, as distinguished from the rights of individuals in their relationships with the government. The Common Law, in short, provided an objective and standard measure to judge social conduct in terms of the rights of individual members of English society.

Moreover, the Common Law, as it evolved, was increasingly protective of the civil liberties of English subjects. Civil liberties, the rights of individuals in their relationships with the government, are legal restrictions on governmental authority in support of individual liberty, including legally prescribed procedures that the government is required to follow when taking action against individuals (e.g., the requirement that the government follow due process of law in depriving a person of his life, liberty, or property). Under the Common Law, during the early stages of its development, the first, limited steps were taken toward making trial by jury an established judicial procedure and a guaranteed right of English subjects. The idea of a twelve-member jury rendering its verdict by unanimous vote emerged as a part of the Common Law tradition.

        English Common Law -- A Summary. English Common Law is the body of judge-made law that developed in the Royal Courts of England, beginning in the twelfth century and continuing to grow over the succeeding centuries. The principles and rules of Common Law developed on the basis of judicial decisions in actual legal cases and controversies. The English judges, in developing the Common Law, tended strongly to follow judicial precedent, adhering to the rule of stare decisis. The result was longterm evolution of a body of legal principles and rules common to the entire Kingdom of England. This meant a standard system of justice throughout the Kingdom, administered by the King's Courts and made available to all English subjects. The criteria of right and fairness which evolved provided a practical definition of private rights -- the personal and property rights of individual Englishmen in their relations with each other. Development of the Common Law also involved gradual, step-by-step definition and increasing protection of civil liberties -- the personal and property rights of individual Englishmen in their relations with the government. In its early development, for example, the Common Law involved the first, limited steps toward making trial by jury an established procedure and a protected right of Englishmen. Common Law contained the seeds of modern constitutionalism, since development of the former entailed growing acceptance of the rule of law, or the supremacy of the law -- the theory that all governmental organs, agencies, offices, and officeholders (even the highest ranking ones) must not act arbitrarily, or capriciously, but must proceed according to law, i.e., act in accordance with recognized and generally accepted principles and procedures. This theory reflected the medieval idea that all legitimate government was government according to law.

        English Common Law and American Legal Development. In the seventeenth and eighteenth centuries, when English settlers migrated to North America to found new colonies, they carried with them the Common Law of England, as it existed at the time. The judges of the colonial courts, in cases and controversies brought before them, applied the established principles and rules of the Common Law, excepting those that were plainly inapplicable to the conditions of human life and intercourse in the frontier societies of the New World. Those parts of the Common Law that were applicable to colonial conditions were, at the time of a colony's first settlement, "received" as the law of the colony. Thus, Common Law became the basis of the legal principles and procedures of each of the British colonies which, at the time of the Declaration of Independence in 1776, became the thirteen original American states. Today, English Common Law constitutes the basis of the legal systems of forty-nine of the fifty states of the U.S.A. The one exception is Louisiana, where the Code of Napoleon forms the basis from which the state's legal system is derived.

2. Magna Carta:

        What Gave Rise to Magna Carta. In England, medieval constitutionalism grew out of the struggle of the nobility to restrain and bring under control a monarch bent on exercising absolute power and ruling the Kingdom in a tyrannical fashion. In 1215, the English barons revolted against King John, after he had failed on three occasions to treat with the barons regarding their request that he give assurance that, henceforth, the Crown would respect the barons' traditional, or customary, rights. The intent of the barons, in engaging in military rebellion against the King, was to restrain an arbitrary ruler and compel him to conform to some commonly accepted law.

To save his head as well as his seat on the Throne, King John finally agreed to meet with the barons and discuss their grievances and demands. At Runnymede, on June 15, 1215, the Monarch conceded to the barons' demands. The result was the constitutional document known as "Magna Carta," or the "Great Charter."

        What Magna Carta Provided. Magna Carta was a statement of the law which the Monarch and his officials would not be allowed to disregard. Essentially, Magna Carta:

    Reaffirmed the rights of the various orders and classes within the Kingdom, e.g., the Crown, the Church, the barrons and their vassals, and those commoners who were free persons;

    Reaffirmed the obligations of the King and his government;

    Specified the objectionable abuses of power which the King would, in the future, refrain from committing.

        Magna Carta and Personal Rights. In Chapter 39 of Magna Carta, one of the document's most important clauses, King John made the following promise:

Here, it was agreed that the Crown and his administration would not arrest, outlaw, banish, or incarcerate any free man, deprive him of his rights, possessions or legal standing, or otherwise take official and forceful action against him, except in accordance with the lawful judgement of his equals or in accordance with the laws of the Kingdom. This was, in embryonic form, the principle of due process of law: The government shall not deprive any person subject to its jurisdiction of life, liberty, or property without due process of law.

Magna Carta provided that justice was to be guaranteed to every person in the Kingdom, that the right of justice would not be sold, delayed, or denied to any person. The document provided that every freeman -- i.e., every Englishmen who was not a serf -- was to enjoy security and protection from illegal interference in his person and property.

        Magna Carta and Extraordinary Taxation. Magna Carta provided that the King was not to levy extraordinary taxes, or impose an extraordinary increase in ordinary taxes, without referring the matter to the "Common Council of the Realm," an assembly consisting of the Monarch, leading Church officers, and the barons -- the assembly that was the forerunner of Parliament.

With the barons, the matter of extraordinary taxation was a particularly sore point. When the King imposed extraordinary taxes, either he was demanding from his subjects payments of money other than and in addition to the traditional feudal dues and fees, to which he was automatically entitled by customary right, or he was decreeing a sharp increase in the traditional feudal dues and fees. The barons strongly objected to extraordinary taxation summarily and arbitrarily levied by the Crown, without the taxpayers having the opportunity to grant or withhold consent to the taxation. As was indicated above, Magna Carta assigned to the "Common Council," or "Great Council," of the Realm the function of deciding whether to approve or reject the King's request for extraordinary taxes.

        Magna Carta and the Central Idea of Anglo-American Constitutionalism. King John, in giving his consent to Magna Carta, agreed that (1) the Monarch was subject to the law of the Kingdom and (2) the law placed limits on royal authority. This reflected an early stage in the development of the central idea of English and American constitutionalism -- the idea that the ruler was not above the law and therefore had to abide by the law and stay within the limits the law imposed on his power.

        Royal Authority Under Magna Carta. While Magna Carta limited the power of the Monarch, by no means did it render him powerless to govern English society. The King remained, in fact as well as in name, the top executive authority in the government of England. As chief executive and head of royal administration, he had full authority to control and direct the administrative offices and officials in the government. He still had the right to appoint his own ministers and councillors as well as the judges of the Royal Courts. He remained master of the Royal Household and in ultimate command of England's military forces. Moreover, he still possessed the Royal Prerogative -- i.e., the broad, undefined sphere of independent decision making authority which enabled the King to act at his own discretion in enforcing the laws of the Realm, maintaining domestic order, dealing with foreign powers and foreign threats, and otherwise administering the affairs of English government. In short, Magna Carta did not reduce the authority of the English Monarch to a point anywhere near political impotence.

        Sharing the Power of Taxation. Under Magna Carta, the King still governed England, but he had to share with the barons one important sphere of political authority -- the power of taxation. All royal requests for extraordinary taxes had to be submitted to the Common Council for its consideration and decision. When it came to the King's raising revenue by means other than collecting the feudal fees and aids in amounts due him by customary right, he had to share with the barons, the largest and most powerful bloc in the Common Council, the authority to make binding decisions. The requirement, stipulated in Magna Carta, that the King submit proposals for extraordinary taxation to an assembly of his leading subjects -- the barons and the Church officers of high rank -- was one small but significant step on the long road to firmly establishing as a constitutional guarantee, truly binding on the Monarch and all other officers of the government, the age old principle of English government that no subject could be taxed without his consent, given by the subject directly in person or indirectly through elected representatives in a legislative assembly. The version of this basic principle of government articulated in English-speaking North America during the political turmoil and conflict of the 1760s and 1770s was, of course, "No taxation without representation."

        Magna Carta -- A Feudal Document. Magna Carta was by no means a democratic constitution proclaiming fundamental rights and liberties that were the common possession of all English subjects, rights and liberties that were to be guaranteed and equally applied to every subject. The document was crafted by a feudal nobility for a medieval society in which its members were legally and politically unequal, most members of the society were serfs without legally guaranteed and protected rights respecting their relations with government or with their respective feudal lords, and this general condition of legal and political inequality was accepted by virtually everyone as not only natural and normal but also right and just. Magna Carta, at the time of its adoption, was a feudal document designed to protect and promote the particular interests of the most powerful segment of the English population, namely, the barons and their vassals. While protection of the interests of free commoners (small landholders and burgesses) was included in the document, Magna Carta did not benefit the masses, since the vast majority of Englishmen in the thirteenth century were villeins -- i.e., serfs, or peasants, who were freemen in their legal relations with all persons except their feudal lord, to whom they were totally subject as slaves. Rather than being a democratic constitution specifying and guaranteeing to all citizens equal protection of the laws and the right to vote in elections for legislators and/or other government officers and to otherwise participate in the political process, Magna Carta was a feudal document intended to protect the specialized rights and privileges of particular social classes, to curb the trend toward royal absolutism, and to restore government according to established feudal customs and traditions.

        Magna Carta -- Its Impact on English Constitutional and Political Development. Despite the essentially feudal character of Magna Carta and the very limited and conservative goals of those who were instrumental in obtaining its adoption, the document had a significant impact on English political and constitutional development. During the period of nearly three centuries between adoption of Magna Carta in 1215 and end of the Middle Ages in 1500, Magna Carta took on three roles. Firstly, Magna Carta was utilized in the Courts of Common Law by lawyers, in entering the pleadings by their clients, and by judges, in deciding on and pronouncing sentences. Secondly, the barons appropriated Magna Carta as a political manifesto in their many efforts to further restrict the power of the King. Thirdly, it became established political tradition for the Monarch, at the beginning of each new session of Parliament, to confirm Magna Carta, i.e., to affirm his recognition of Magna Carta as the law of the Kingdom and his obligation to uphold and obey that law. In doing this, the Monarch was confirming a document which articulated the basic political principle that there existed a body of law above the Crown, that the Monarch was below and controlled by the law. By confirming Magna Carta, the King solemnly assured his subjects he was and would remain under the law of the Kingdom, acting according to procedures prescribed by the law.

The success of the English barons in forcing a monarch to grant them a written charter of rights and privileges was a precedent of significant value in future endeavors to curb the King's power. King John's agreeing to Magna Carta, in order to end the barons' military rebellion against him and thereby save his life as well as his seat on the Throne, demonstrated that a monarch could be made to come to terms with his subjects. The King's capitulation was proof that a ruler could be compelled to redress the grievances of his subjects and accept legal restraints on his political authority.

Although Magna Carta was almost forgotten during the century of absolutism or near-absolutism after 1485, the document was rediscovered and given new luster in the seventeenth century, during the "Era of the English Revolution" -- the period of constitutional crisis, rebellion, and civil war from 1603 to 1689. In opposition to the claims of the first two Stuart monarchs -- James I (1603-1625) and Charles I (l625-1649) -- to the right to govern as absolute monarchs, the defenders of the authority of Parliament brought out Magna Carta and gave it an interpretation that was much broader than what the document was intended to mean when, in 1215, it was drawn up and adopted. In interpreting the document as the palladium and principal bulwark of English liberties, Sir Edward Coke and other leading supporters of Parliament in the power struggle with the Stuart monarchs modernized Magna Carta, transforming it into a constitutional document that worked for the seventeenth-century "Parliamentarians," or "Whigs" -- the men who overthrew and executed one king (Charles I, in 1649) and deposed another (James II, in 1688), driving him out of the country, replacing him with a monarch of their own choice, and forcing the new monarch (William III, in 1689) to accept the Bill of Rights. Today, Magna Carta, like the Bill of Rights of 1689, is regarded as a major milestone in English constitutional history and development.

3. Parliament During the Middle Ages:

        Curia Regis and Great Council. The Parliament of England grew out of the eleventh and twelfth-century Curia Regis, or Royal Council, which was a meeting summoned at the will of Crown and usually consisting of the King and his officials, high officers of the Church (bishops and abbots), and a small number of barons (noblemen who were large landholders). The Curia Regis, presided over by the Monarch as feudal overlord, advised the King, helped him define laws and customs, and served as a court to deal with matters respecting the person, rights, and lands of the Monarch and to hear and decide cases involving the great men of the Realm, i.e., barons and high-ranking Church officers. While the Curia Regis was generally a small body, its numbers were great inflated when it met as the Great Council, or Common Council, of the Realm, at which time it consisted of all the King's barons as well as the King himself, his ministers, and high-ranking officers of the Church.

Meetings of the Great Council were usually called for discussion of and action on pressing problems facing the royal government. Such meetings were summoned when the King wished to sample public opinion more widely than usual and to secure the support of the great men of the Realm for some governmental undertaking desired by the Crown. Generally, such important matters of state requiring the attention of the Great Council involved inordinate expenses incurred by the King, due, more often than not, to the outbreak of war. In short, the Great Council was called into session whenever the Monarch saw the need for extraordinary taxation -- the need to raise revenue in addition to that automnatically due the Crown from customary feudal dues and aids.

        Emergence of Parliament. During the thirteenth century, the Curia Regis was gradually transformed into a more representative assembly and acquired the name "Parliament," a name derived from two French words -- (1) "parler," which means "to speak," or "to talk," and (2) "parlement," which means a "talking together," a meeting or conference where there is talk, speaking, debate, and/or deliberation. The early sessions of Parliament, like the sessions of its predecessors, the Curia Regis and the Great Council of the Realm, were meetings summoned from time to time by the Monarch and comprised of him and his subjects of great consequence and high social rank -- royal officials, barons, and high Church officers. Meetings of Parliament, like those of the Great Council, were called whenever the King's revenue needs exceeded his proceeds from ordinary taxation, whenever the King's need for money exceeded the amount of money he collected in the form of customary feudal dues and fees. The King, perceiving the need for extraordinary taxation, summoned Parliament into session to consider and act on his request for special grants of money -- special taxes to meet extraordinary expenses of the royal government.

        Parliament and Extraordinary Taxation. The English Monarch's calling meetings of the nobility and high clergy to consider and act on requests for special revenue became an established practice dueing the thirteenth century. There were at least two reasons for this. With the adoption of Magna Carta in 1215, the King was required by written law to refer proposals for extraordinary taxes to the Common Council, or Great Council, of the Realm. After the death of King John and the end of the civil war waged by the barons against the Monarch (because of his repeated attempts to renege on and violate Magna Carta), John's successors, seeking to avoid trouble with their subjects, followed the path of least resistance and called Parliament into session whenever they saw the need for non-feudal taxes.

Emerging during the thirteenth century, if not earlier, was the legal and political doctrine that, for taxation to be legal and constitutional, it must be approved by the men who pay the taxes or by their representatives. This doctrine was derived from the principle of Roman law adopted by Judge Henry de Bracton and incorporated into his 1259 treatise, On the Laws and Customs of England: "The law, to bind all, must be approved by all." Legally and constitutionally, a man's property could not be seized; it had to be given voluntarily. To obtain extraordinary revenue, the King had to call a meeting of his subjects of high rank and substantial wealth and get them to agree to give him the money requested. By 1297, the approval of all extraordinary, or non-feudal, taxes was recognized and accepted as an important function of Parliament. Long before the English Revolution of the seventeenth century, the idea that only the consent of the King's subjects or their representatives could make non-feudal taxation legitimate was deeply embedded in English political culture.

        Parliament and Other Legislation. Early in the fourteenth century, the principle that the consent of Parliament was also required for the enactment of other kinds of legislation -- laws other than those authorizing taxation -- was to become firmly entrenched in English political culture. At least by the end of the reign of King Edward II in 1327, it was a well-established principle that all statutory legislation had to be enacted by the "King in Parliament," i.e., by the King with the approval of Parliament.

        Parliament as a More Representative Assembly. By the end of the thirteenth century, Parliament had evolved into an assembly significantly more representative than it had been at the beginning of the century. The Monarch, early in the 1200s, began to summon elected, non-baronical lay representatives as well as barons and high Church officers to sessions of Parliament. The King commanded the local communities in different parts of the Kingdom to choose reliable persons to whom they could delegate the authority to treat with the Crown and commit their communities to grants of money. The 1213, 1254, and 1258 Parliaments included representatives elected from the shires (counties). The 1265 Parliament included non-baronical lay members elected from the boroughs (incorporated towns) as well as those elected from the shires.

The socalled "Model Parliament" of 1295, summoned by King Edward I to obtain money to finance his wars with the Welch, the Scots and the French, was a more representative body than had been any previous Parliament. The Model Parliament consisted of the nobility and the higher clergy, plus two knights elected from each county and two burgesses (wealthy, town-dwelling commoners) elected from each bourough. The Parliament of 1295 was a "model" only in the sense that present in the assembly were all the ingredients that were later included in all Parliaments -- nobility, higher clergy, knights, and upper-middle-class commoners.

From 1295 on, English kings generally followed the practice of calling on the shires and boroughs to elect representatives to Parliament. The elected representatives would be summoned, along with the nobility and higher clergy, to attend a meeting of Parliament, at which they were to consider and act on taxes and other measures submitted by the Crown. The shire and borough representatives -- the knights and burgesses -- were elected with the power of attorney, i.e., the authority to decide and act for their respective constituencies and to bind them to whatever was agreed on in Parliament.

Despite the more representative composition of Parliament at the end of the thirteenth century and the beginning of the fourteenth, the role of the elected, non-baronical representatives in Parliament was quite insignificant. Performing a very limited number of functions, these elected members of Parliament provided information and presented a few petitions to the Crown as well as approved requests for extraordinary taxation. The elected representatives were not organized and did not constitute a separate chamber of Parliament. They neither initiated public business nor drafted proposed Acts of Parliament. While their approval of non-feudal taxes was essential, the elected representatives did not use to political advantage their power to withhold consent to and thereby block parliamentary enactment of extraordinary taxes. That is, they did not exploit their power over the public pursestrings to obtain any degree of control over the royal government and its policies.

This state of affairs, however, contained the seeds of significant political change. The Monarch summoned elected representatives to sessions of Parliament mainly because he wished to tap sources of wealth in addition to those under the control of the barons. The knights and burgesses were now the monied element of the Kingdom, and the King wanted their elected representatives in Parliament to commit them to payment of extraordinary taxes. Consent to extraordinary taxation was the earliest function of elected representatives in Parliament and it continued to be their principal function.

The elected representatives were well aware of the fact that the Crown perceived of them primarily as a source of money. This gave the representatives political leverage -- potential ability to modify and control the policies of the King and his government, to bend them to the will of the elected representatives and their constituents. The knights and burgesses elected to Parliament were skillful negotiators and bargainers as well as experienced politicians and administrators. When given the opportunity, they demonstrated their ability to effectively represent in Parliament the interests of their local constituencies, negotiating with the King and his ministers to strike the best bargain possible for the taxpayers in the shires and boroughs. In time, the elected representatives would gain significant political power and become the most important component of Parliament.

        Parliament as a Bicameral Assembly. Numerous political developments occurring during the fourteenth century increased the importance and power of the elected, non-baronical representatives in Parliament. Parliament, called into session more frequently than during the previous century, evolved into a bicameral assembly -- an assembly consisting of two separate chambers, the House of Lords and the House of Commons. The nobility and the higher clergy sat together as the House of Lords and the elected representatives from the counties and towns sat together as the House of Commons. When the lower clergy withdrew from Parliament to their own ecclesiastical convocations, the House of Commons became a purely elective body -- a parliamentary chamber consisting solely of representatives elected by the voters in the local election districts.

        Increasing Importance and Power of the House of Commons. In the latter part of the fourteenth century, the residents of the shires and boroughs became more keenly interested in and attentive to the business conducted at sessions of Parliament and began to perceive representation in Parlianent, not as a nuisance or burden, but as a privilege and source of political power that could be used to their own advantage. More importantly, the House of Commons began to gain certain powers. The Commons acquired the right to introduce bills into Parliament and began to initiate numerous legislative proposals. To become law, proposed legislation, whether first introduced in the Commons or in the Lords, had to be approved by both chambers as well as by the Crown. The House of Commons was now one of the three principal organs of English government, each of which had the right to initiate legislative bills in Parliament as well as the power of absolute veto over any and every bill introduced into that assembly. A majority of the members of the House of Commons was now in a position to initiate a legislative bill in the Commons, pass the bill, and then threaten to block enactment of legislation favored by the Crown and the House of Lords, if those two governmental organs withheld their consent from the bill initiated in and approved by the Commons.

Another significant step in the evolution of Parliament during the fourteenth century was the beginning of the custom of the Crown (1) originating (first introducing) all revenue bills (proposals for extraordinary taxation) in the elective House of Commons and (2) originating other legislation in either the non-elective House of Lords or the elective House of Commons. This custom was to become fixed practice in the fifteenth century. From then on, extraordinary revenue was granted to the Crown by the Commons, with the advice and consent of the Lords, and other legislation desired by the Monarch was approved by either house of Parliament, with the advice and consent of the other house.

The new role of the elective House of Commons as the body which decided, subject to the Lords' concurrence, whether the Crown's request for taxes would be granted flowed logically from the doctrine that, for taxation to be legitimate, it had to be approved by the taxpayers themselves or by their elected representatives. The Crown could not simply levy tribute. A man's wealth or property could not be seized; it had to be freely given, given in person or through his elected representatives. Taxation without consent could not be constitutional.

Still another fourteenth-century development involved in the evolution of Parliament was acquision by the House of Commons of the right of impeachment. The Commons gained the authority to formally charge royal ministers and other officers of the Crown with malfeasance (misconduct) in public office. The House of Commons, sitting in the capacity of a grand jury, would officially accuse a Crown officer of malfeasance in government office and the House of Lords, functioning as the High Court of Parliament, tried the officer on the impeachment charge. The impeached officer, on conviction by the Lords, was subject to removal from office, imprisonment, fines, and forfeiture of illegally acquired property. The House of Commons invoked the power of impeachment on several occasions during the late 1300s. By the end of the century, the right of the Commons to exercise this authority was firmly established.

By gaining and exercising the right of impeachment, the House of Commons opened the door to control of Crown officers in the future. While the King was not subject to impeachment, his ministers and other officials were subject to the process. This made them responsible for their decisions and actions while in office. When royal officers were impeached and had to stand trial before the House of Lords, the power and prestige of the Crown were as much at stake as were the positions and reputations of the accused officers. Vigorous use of the impeachment process could effectively restrain and control the Monarch and his government.

During the Middle Ages, however, impeachment was not the independent judicial process that it eventually became in the Modern Age. The medieval House of Commons often served as the tool of the King or powerful barons in attempts to eliminate or neutralize political opponents. The House of Commons, when impeaching government officials before the Lords, did not function as the independent organ of government that it would much later become.

        Parliament as a Securely Established Organ of Government. By the close of the fourteenth century, the foundations of Parliament had been laid and its basic structure had been built. Although its form was not yet complete, Parliament was securely established in the English governmental system. Parliament was so firmly entrenched that it managed to survive the civil disorder abd dynastic warfare of the fifteenth century, the absolutism or near-absolutism of the Tudor monarchs during the sixteenth century, and the constitutional crises and internal warfare occurring during the seventeenth-century "Era of the English Revolution."

        Failure of the House of Commons to Obtain Important Rights and Privileges. The House of Commons failed to win certain important rights and privileges during the Middle Ages, though the Commons laid claim to them. Near the end of the fourteenth century, for example, the House of Commons attempted to assert the right to freedom of speech and debate in Parliament, but failed to make it stick. The Commons also failed to acquire the right to immunity from arrest in civil suits while Parliament was in session.

4. Parliament and Changes in English Policical Culture During the Middle Ages:

Certain alterations in English political culture during the Medieval Period were significant to the subsequent evolution of Parliament.

        The Nature of Parliament. The Middle Ages witnessed an important change in how the English perceived the nature of Parliament. During the period between the emergence of Parliament in the 1200s and the close of the fifteenth century, there occurred a gradual transition from conception of Parliament as an advisory body called at will by the King to conception of Parliament as a meeting of representatives of the people, representatives who, on behalf of the people, had come to treat with the Monarch. Parliament came to be perceived as an assembly of the people's representatives, meeting for the purpose of bringing to the Monarch's attention matters of concern to the people and their representatives and arriving at a settlement with him regarding these matters.

        Acts of Parliament. There occurred an equally significant alteration in how the English perceived Acts of Parliament. This was a change from perception of parliamentary acts as resolutions merely recommending public policy to perception of such acts as legislative statutes. Acts of Parliament came to be seen as authoritative decisions on public policy -- decisions which, once they had been passed by majority vote in each of the two chambers of Parliament and then approved by the Crown, became fixed laws of the land, binding on all members of English society, and not subject to change by the Crown, deciding and acting without the approval of majorities in the two houses of Parliament. Having been approved by representatives of the Estates (established orders) of the Realm -- Commons, Lords, and Crown -- parliamentary statutes were binding on the Monarch as well as all other members of English society. The King's political authority was limited in that he could neither change the laws nor impose taxes without the consent of the two houses of Parliament -- Commons and Lords. The three principal organs of English government, each embodying or representing one of the three Estates of the Realm, had to consent to taxation or other legislation before it could go into effect as the binding law of the land.

This constitutional theory and political perception had, by the end of the Middle Ages, become deeply embedded in English political culture.

        Constitutional Theory and Political Reality. The legislative function of Parliament was well developed and clearly understood during the late Middle Ages. This function, however, existed as a limited and minor role of Parliament, and remained so until the Modern Age. In the fourteenth and fifteenth centuries, as in the entire Medieval Period, sessions of Parliament, for the most part, were called only occasionally and were brief in duration.

5. Parliament and the Tudor Monarchs:

In the political and social history of England, the year 1485 can be taken as marking the end of the Medieval Period and the beginning of the Modern Age. The year 1485 also marks the beginning of the era of rule by the Tudor monarchs, an era which extended to 1603. The first Tudor to govern England was King Henry VII, whose reign extended from 1485 to 1509. His son, Henry VIII, governed from 1509 to 1547. The remaining Tudor monarchs, all of whom were the offspring of Henry VIII, included Edward VI, whose reign lasted five years (1547-1553), Mary I, whose reign also lasted five years (1553-1558), and Elizabeth I, who occupied the Throne forty-five years (1558-1603).

        Relations Between Crown and Parliament During the Tudor Era. During the era of Tudor governance, relations between Crown and Parliament were, on the whole, cooperative and peaceful, despite the Monarch's exercise of nearly absolute power. The Tudors' success in getting along with Parliament was due primarily to three factors. First, the Tudor monarchs were immensely popular with the English people, since they brought peace, order, justice, and economic prosperity to a land that had been wracked by thirty years of dynastic warfare prior to 1485 -- the Wars of the Roses, the dynastic wars occurring from 1455 to 1485 and fought between two rival royal families contending for the Throne of England, the House of Lancaster and the House of York. The general public was strongly supportive of the Tudor administrations, for the people saw the need for a powerful central government, one with the determination as well as the capacity to ensure domestic tranquillity, political stability, and eradication of foreign and papal influence in England's internal affairs. The Tudors, sensitive to England's commercial interests and pursuing policies supportive of those interests, were especially popularly with the politically active and attentive upper middle class of merchants and businessmen.

Second, the Wars of the Roses had decimated the ranks of the old nobility to the point of virtual extinction. Almost all of the existing noblemen belonged to the new nobility, which had been created by the Tudors. After the 1530s, members of the new nobility were the majority in the House of Lords.

Third, the Tudor monarchs demonstrated extraordinary ability to exploit the potential of existing institutions for their own purposes and to do this without alienating important segments of English society. The Tudors generally operated through Parliament, not in defiance of it. And most of the time, their actions were legal.

During the era of Tudor rule, serving as the instrumentality to ensure cooperation between the King and his subjects was a well-recognized function of Parliament. The Monarch frequently used Parliament to maintain his political support and get his own way, as regards national public policy. For example, King Henry VIII sought to work with rather than against Parliament and, while doing so, to manipulate and control that body. The Crown found it advantageous to intervene in elections of members of the House of Commons as well as in the Commons' election of its Speaker (presiding officer).

The relationship between Crown and Parliament during the sixteenth century had significance for the future development of Parliament. Due to the Tudor monarchs' frequent use and manipulation of Parliament, the latter was becoming increasingly conscious of its own particular power. Flexing its newly discovered political muscles, Parliament set a number of precedents that were to be utilized to advantage in English politics during the seventeenth century and that were to help shape the development of the legislative assemblies in England's North American colonies during the seventeenth and eighteenth centuries.

These precedents will be discussed in connection with our examination of political developments occurring during the reign of the last of the Tudor monarchs -- the forty-five year reign of Queen Elizabeth I.

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