Читать книгу The Governments of Europe - Frederic Austin Ogg - Страница 11

14. Powers of Finance and Legislation.—Structurally, the English Parliament is a creation of the Middle Ages; politically, it is a product of modern times, and, in no small measure, of the past hundred years. Before the close of the Middle Ages, however, it had acquired a sum total of authority which at least gave promise of its development into a great co-ordinate, if not a preponderating, power in the state. In the first place, it had forced the establishment of the twin principles of public finance (1) that the right to levy taxes of every sort lay within its hands and (2) that the crown might impose no direct tax without its assent, nor any indirect tax save such as might be justified under the customs recognized in Magna Carta. When Edward I. confirmed the Charter, in 1297, he agreed that no tallages or aids should thereafter be taken without the assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land. A statute of 1340 reiterated the principle still more specifically. In 1395 appeared the formula employed to this day in the making of parliamentary grants, "by the Commons with the advice and assent of the Lords Spiritual and Temporal." And in 1407 Henry IV. extended the royal approval to the principle that money grants should be initiated in the Commons, assented to by the Lords, and only thereafter reported to the king. For the ancient theory of taxation by estates was substituted, slowly but inevitably, the modern doctrine of the fiscal pre-eminence of the Commons.

The second point at which Parliament made decisive advance before the close of the mediæval period was in respect to powers of ordinary legislation. Originally, Parliament was not conceived of as, in the strict sense, a law-making body at all. The magnates who composed the General Council had exercised the right to advise the crown in legislative matters, and their successors in Parliament continued to do the same, but the commoners who in the thirteenth century were brought in were present, in theory, for fiscal rather than legislative purposes. The distinction, however, was difficult to maintain, and with the continued growth of the parliamentary body the legislative character was recognized eventually to be inherent in the whole of it. At the opening of the fourteenth century laws were made, technically, by the king with the assent of the magnates at the request of the commoners. The knights and burgesses were recognized as petitioners for laws, rather than as legislators. They could ask for the enactment of a statute, or for a clearer definition of law, but it was for the king and his councillors to determine finally whether legislation was required and what form it should assume. Even when a law which was requested was promised it not infrequently happened that the intent of the Commons was thwarted, for the text of the measure was not drawn up, normally, until after the parliament was dissolved, both form and content were determined arbitrarily by the crown and council, and between petition and statute there might be, and often was, gross discrepancy.

15. Development of the Legislative Process.—By a memorable statute of 1322, in the reign of Edward II., it was stipulated that "the matters which are to be established for the estate of our lord the king and of his heirs, and for the estate of the realm and of the people, shall be treated, accorded, and established in parliaments, by our lord the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm; according as it hath been before accustomed."[13] This declaration is understood to have established, not only the essentially legislative character of Parliament, but the legislative parity of the commoners with the magnates. It remained, however, to substitute for the right of petition the right of legislating by bill. Throughout the fourteenth century Parliament, and especially the Commons, pressed for an explicit recognition of the principle that the statute in its final form should be identical with the petition upon which it was based. In 1414 Henry V. granted that "from henceforth nothing be enacted to the petitions of his commons that be contrary to their asking, whereby they should be bound without their assent."[14] The promise tended in practice to be evaded, and late in the reign of Henry VI. there was brought about an alteration of procedure in accordance with which measures were henceforth to be introduced in either house, in the form of drafted bills. The legislative process was now essentially reversed. The right of initiative was secured to the Commons, concurrently with the Lords; the crown was restricted to a right of veto or assent. The change in procedure was reflected in a change of formula. Statutes began to be made "by the King's most excellent majesty by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same." And these words comprise the formula with which every act of Parliament to-day begins. Technically, the laws were, and are still, made by the crown; practically Parliament, once merely a petitioning and advising body, had become a full-fledged legislative assemblage.

Throughout the later fourteenth and earlier fifteenth centuries the growth of Parliament in self-assertiveness was remarkable. Twice during the fourteenth century, in 1327 and in 1399, it exercised the fundamental prerogative of deposing the sovereign and of bestowing the crown upon a successor.[15] And before the close of the Lancastrian era it had assumed advanced ground in demanding the right of appropriating (as well as of voting) subsidies, the accounting by the public authorities for moneys expended, the removal of objectionable ministers, and the annual assembling of the two houses. During the civil wars of the second half of the fifteenth century parliamentary aggressiveness and influence materially declined, and at the opening of the Tudor period, in 1485, the body was in by no means the favorable position it had occupied fifty years earlier. As will appear, its eclipse continued largely through the epoch of the Tudors. Yet its broader aspects had been permanently fixed and its perpetuation in the constitutional system positively assured.[16]