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Origin and Growth of Parliamentary Government Virgil J Kentucky Law Journal Volume 6 | Issue 5 Article 4 1918 Origin and Growth of Parliamentary Government Virgil J. Pritchett University of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Legal History Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Pritchett, Virgil J. (1918) "Origin and Growth of Parliamentary Government," Kentucky Law Journal: Vol. 6 : Iss. 5 , Article 4. Available at: https://uknowledge.uky.edu/klj/vol6/iss5/4 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. KENTUCKY LAW JOURNAL. ORIGIN AND GROWTH OF PARLIAMENTARY GOVERNMENT. By VIRGIL J. PRITCHETT.t The growth of the English Constitution is the resultant of three forces, viz.: the natural character, the external history and the institutions of the people. It is necessary in this discussion to say just a few words about the forefathers of the English peopl6, who they were, and what they brought with them. The English people are not aboriginal. They are a people of German descent in the main constituents of blood; character, and language, and especially in the possession of the elementg of primitive German civilization and the common germs of German institutions. Historians have placed the Anglo-Saxon conquest and colonization of Britain between the middle of the fifth .and the end of the sixth century. It has been said the English Constitutional history is a development of Ger- manic principles in comparative purity. The Anglo-Saxon institu- tions did not come under the influence of the imperial system and the Mezenta union with Italy, on account of its geographical isola- tion. The English were converted to Christianity 597-681 (this con- version marked a beginning of an important influence upon the natural development). The church not only introduced a higher civilization, mitigated the original savagery of the heathen conquer- ors, softened their pride of birth and race, and exalted the power of the intellect above that of brute force, but also supplied a new and powerful bond of union to a divided people. We will now say a few words in regard to the territorial di- vision of the nation. One of the smallest was the township, and each township had its tun-gemot, or assembly of freemen, and a tun- gerefa, chief executive officer. The townships were grouped together into hundreds, or wapentakes. An aggregation of hundreds made up the Shire. The government of the shire was administered by an eal- dorman and scir-gerefa or sheriff. The highest popular court of the tSenitor in College of Arts and Science and Sophomore in College of Law, University of Kentucky. Dixon, Ky. Origin and Growth of Parliamentary Government. shire was the folkmoot. (This court survived as the hundred court when the kingdom was later consolidated.) A small aristocratic body of the great and wise men of the land formed the witan, whose duty was to advise the king. This witan was in no sense a popular assembly of the whole nation. As the West Saxon power overran all England, the Witan of Wessei finally became the Great Council of the Empire. The supreme powers were vested in the king and the witan. The powers of the Witanagemot were very extensive and even greater than those of the modern Parliament. The three chief powers were the following: first, it had the power of deposing a king for misgovernment; second, it had the power of electing a king; third, it had a direct share in every act of government. Altho by the time of William the Conqueror feudalism had been firmly established in France, we fin'd that his policy was more national than feudal in England. He continued to hold three times a year at the accus- tomed times and places, the National Assembly, which the arch- bishops and bishops, abbots and earls, theigns and knights attended. For a while it retained its old name witan, but as the feudal prin- ciple gradually gained predominance in every department of the state it was changed almost insensibly into the Curia Regis, the court of the king's feudal vassals. It has been said that from the Curia Regis sprang the higher courts of law, the privy council and the cabinet. By the counsel and consent of this body the king dis- charged both legislative and judicial functions. In this way his power became very great. Altho his rule was ofttimes harsh, yet the reign of William was beneficial to the nation, which required welding to- gether and organizing by a strong central government. The reign of William Rhfus assumes Constitutional importance because of the.systematic elaboration of the theory of the incidents of feudal tenure, and rigid application of them in practice, as a fiscal expedient, to ecclesiastical and lay tenants alike; second, the continued struggle between the royal and feudal powers, which caused the king to look to the support of the native English. Under the reign of Henry I the Curia Regis assumed a more definite character; its members were the officials of the royal house- hold and friends of the king, and their number was reduced. About this time the Curia Regis undertook financial duties and in this re- KENTUCKY LAW JOURNAL. spect may be said to be the parent of the court of exchequer. The members were now called "justices"; if the king happened to be ab- sent when the court convened the chief justice presided over the court. The earls never lost their right to attend this assembly. All other- military attendants in capite were probably selected by the king. Thus the same indefiniteness and uncertainty which had char- acterized the Witanagemots prevailed as a feature of the feudal Great-Councils. It was almost impossible for all the tenants in chief to attend this assembly, and with the exception of the famous Gemot of Salisbury in 1086, and also a similar gathering of landowners by Henry I in 1116 all the tenants in chief never attended any one popular assembly. But we must keep *in mind the fact that the per- sonal right always existed; it was the infringement of just this right "when Councils were summoned for the purpose of granting extraordinary aids," which was responsible for that'provision in the Magna Charta by which the king gave a solemn promise to sum- mon all tenants in capite, the archbishops, bishops, abbots, earls, and magores barones.; on all such occasions they were summoned indivi- dually and the rest thru the sheriff. This difference in the mode of summoning shows an existing inequality among the tenants in chief. The right of, inferior tenants in chief still existed but it was im- practicable for them to attend the National Council on account of the increase in numbers. Consequently the National Assembly was noth- ing more than an assembly of the majores barbnes, and ultimately de- veloped into a hereditary House of Lords, the Upper House of the National Parliament. This hereditary character accrued slowly and undesignedly as a result of the hereditary descent of the baronial fiefs. During the period of Henry II we mnAl two great advances in the growth of the Constitution. First, the reorganization and full development of the kingship as a monarchy at once feudal and na- tional. Second, the maintainance of the legal supremacy of the State over the National Church. We will now take up the first of the three great politiel docu- ments, which forms one of the fundamental compacts between the crown and the nation, and also stands out as a landmark in English constitutional history, the Magna Charta. The Magna Charta was the outcome of a movement of all the freemen led by the barons to Origin and Growth of Parliamentary Government. resist the tyranny and firsurpation of John. The Great Charter was signed by King John June 15, 1215. This charter was in substance at treaty or compact entered into between the royal authority on the one side and the nation marshaled in.the ranks of the three estates on the othcFr side. There was nothing in it to recall the old distinc- tions of English and Norman blood, nor was there anything to sug- gest the differences of English and Norman law. This Charter was in fact the final consummation of the work of union. This was the act of the whole nation, church, barons, and commons, acting for the fiikst time as one. The provisions of the Great Charter can be divided into two broqd divisions: first, those that relate to the rights, and privileges of the three estates; second, those that relate to the rights and privileges of the nation as a whole. The Church was guaran- teed free elections, her rights and liberties should be inviolable. The barons were relieved of feudal burdens. That all the cities should have all their ancient liberties and free customs. The term Commons now means all freemen below baronial rank. Among the clauses which refer to the rights of the people as a whole regardless of class are the constitutional provisions relating to the organization of the Na- tional Council, procedure of the King's Court, and the general ad- miniktration of justice. No scutage or aid could be imposed without the consent of the Common Council of the nation, except the regular feudal aids and this Common Council could only be taken in a national assembly summoned in the manner the law directs.
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