- 1 The House of Commons in 1700
- 2 English Parliament and other parliaments
- 2.1 The House of Commons dominated parliament
- 2.2 The 'exclusion' of the upper nobility and clergy
- 2.3 The House of Commons covered the whole kingdom
- 2.4 Elections 'unique' to the House of Commons
- 3 The Commons: legislature and separation of powers
- 3.1 Legislative power of the Commons
- 3.2 Budget power of the Commons
- 3.3 Constitutional limits to the Commons' power
- 3.4 Sociological limits to the legislative power
- 4 The Commons start to dominate government
- 5 Notes
The House of Commons was part of the parliament of England, which just like the current parliament of the United Kingdom, consisted of the House of Commons, the House of Lords and the sovereign. At first glance the parliament of England seemed little different from other European parliaments.
|Westminster in 1700|
In 1700 English politics was however almost exclusively about the actions of the House of Commons. This had been brought about by some aspects of how the English parliament and the House of Commons itself were organized.
Aspects unique to the English Parliament and the House of Commons were: the exclusion of the upper nobility and the clergy from deciding on certain subjects; parliament representing the whole territory of the kingdom;and finally the elections.
All this made the House of Commons the dominant force in the English legislative. Legislative power in 1700 was however a bit different from the current.
In 1700 Europe had a lot of representative bodies with roots in medieval times. In mainland Europe these were called états (French), staten (Dutch), or stände (German). Almost all of these had a representation of the nobility, the clergy and the proprieted part of the civil population. In this respect the English parliament as a whole seemed little different from other European parliaments or États, which also contained representatives of the three classes or états.
The House of Commons had however succeeded in coming to dominate the rest of the Parliament of England. This domination was brought about by some aspects unique to the parliament of England and to the organization of the House of Commons.
The English parliament had first split into two chambers in 13321. The upper nobility and upper clergy formed what became known as the House of Lords and the representatives of the landed gentry and cities formed the House of Commons. At some time this was followed by the principle that financial laws (taxes) were the exclusive domain of the House of Commons. The combination of these events meant that the nobility and clergy were not only excluded from decisions about taxation, but could not even join in discussions about these.
At first that did not seem so significant because the upper nobility was so wealthy and powerful that it could even raise its own armies. The Wars of the Roses (1455-1485) and finally the English civil wars of the 1640's did however destroy the wealth and power of the upper nobility. After that the House of Commons was the only institute that could provide the state with money, and its members alone decided how much the state got.
A rather unique aspect of the House of Commons was that it covered the whole kingdom whereas most continental etats covered only provinces. This meant that the English monarch could not circumvent it by doing business with individual provinces. It made the House of Commons just as strong as the États Généraux of France.
A final difference was the way the representatives to the commons were chosen (and that they were chosen at all in stead of nominated by towns or having a seat by right). England and Wales numbered 272 constituencies of which 52 Counties and 220 Boroughs, still heavily based on Simon de Montfort's summons of the first proper parliament in 1265. Most of these elected 2 M.P.'s to parliament, except for the 12 Welsh counties and the Welsh boroughs that each elected 1. All together this made for about 535 M.P.'s to be joined by 45 Scottish M.P.'s in 1707. It is supposed that in 1700 somewhere between 70,000 and 200,000 people were eligible to vote for the commons. This could lead one to suppose that a reasonable proportion of the middle class was represented, but this was not the case.
For the electorate of the 52 counties things were quite clear. Anyone having a freehold worth 40 shillings a year was eligible to vote. Whereas 40 Shillings used to be a lot of money when this property qualification was instated, inflation meant it was not in the 1700's. Also a freehold was understood as property, and as a government commission or job was mostly a right for life, it too was considered property or freehold. All in all this meant that in the counties people from small farmers to shopkeepers and petty commissioners were eligible to vote, giving a lot of counties an electorate ranging between thousand and five thousand voters.
In the boroughs things were organized quite differently. Not all boroughs that could send a representative to parliament had the same number of voters. There were boroughs with thousands of voters, where almost every man had the right to vote, 'pocket boroughs', and 'rotten boroughs' existing of only a few houses (e.g. Old Sarum with 11 voters). The 'pocket borough' was a borough where a member of the aristocracy was so powerful that he could either by bribery of intimidation control the election, this resulting in members of the Lords controlling Commons' seats, placing their family or followers on them. Because voting was not secret at the time a lot of voters, though free in theory, were practically bound to vote for the local men of power, who were often able to hurt them should they choose not to do so. Getting elected was thus not primarily dependent on having ideas the voters liked but also depended on having power over them, treating them to money, food and drink, clientilism and doing nice things for the borough (also somewhat in that order).
The House of Commons is closely connected with the development of Montesquieu's theory about the separation of powers or Trias Politica. In his observations on the English constitution he noted that each state had Legislative, Executive and Judiciary powers and that the way these were separated in England gave Englishmen their freedom and security. For parliament (Lords and Commons) he noted that it had the legislative power consisting of making laws and checking how the executive had executed these2.
Thus the main activity of Parliament was making laws. In this respect the House of Commons and the House of Lords were equal. There was however one exception: i.e. that all financial measures could only be initiated by the Commons, and not be amended by the Lords. This first of all meant that the Commons decided on taxation.
The exclusive say of the Commons about taxation had its root in the fact that when in medieval times the king wanted money to wage war, each class could only give what it owned. While the commons had usually agreed to give some money, and the clergy had for a while taxed themselves in their own convocation, the Lords contributed by personally joining the king in war. Thus their argument that they paid a 'bloodtax' did have some validity at the time, just as it was logical that they did not decide on taxes.
The key to understanding Montesquieu and his Trias Politica is in understanding the role of taxation laws. Montesquieu mentioned these as the most important part of legislation3. Anno 2010 the biggest law that any modern government executes is the budget law. The budget is what pays the bills and without it the government cannot execute anything. By approving the budget the legislature also gives a rather precise direction to the government's policy. This straight and simple relation between legislative and executive was however not that simple in 1700.
One can state that in 1700 the king spent the money collected by the tax laws and was therefore the executive of these laws. Montesquieu and his contempararies had a different opinion about this. They perceived government as the executive of the king's independent constitutional responsibility for the internal and external security of the kingdom. At one time this had certainly been true, because the king traditionaly had his own means (crown domains, vassals, certain ordinary and extra-ordinary taxes) to execute these tasks. As long as the taxes granted by the Commons formed only a small and or incidental part of the King's expenditure, the king could therefore not be designated as the executive of the Commons' laws.
On the ascension of William III the taxes granted by The Commons did however rocket to such a high and permanent level that the king had become almost completely dependent on these taxes. The king still had an independent constitutional task, but was primarily executing the laws made by the Commons.
The right of the Commons to budget, or determine the purpose of taxation originated from their ability to assent to taxes only on the condition that they were spent on a specific goal. Whereas nowadays parliament votes separately for taxes and for the goals they are spend on (the budget), this was not the case in the 1700's. This meant that parliament did not only determine the amount of taxes the government got, but also determined what they were spent on. Simply put: there was no separate budget law, but government had little room to spend taxes according to its own views
The lawmaking power of the Commons was not unlimited. First of all its laws needed the consent of the Lords, and officially that of the king (though Anne would be the last to refuse an assent). Secondly non-financial laws could be amended by the Lords, just as the commons could amend the laws of the Lords. Thirdly one house could vote to throw out any bill made by the other house.
There were however still other limits to the legislative power of the Commons and these had to do with its mandate. The Constitution gave the Commons a clear mandate to decide about taxation, and how it was spent and also towards some other aspects of public and international law. Furthermore the bible gave the Commons a theoretical justification to sometimes intervene on religious grounds. Apart from that the Commons did not deem itself mandated to change the state of affairs.
Theories about natural law (see the US Constitution), or people's sovereignty (French revolution) would later on give parliaments a mandate to make any laws they wanted. In 1700 however the M.P.'s did not have recourse to these theories and for most apects of life Europeans considered the law to be permanent and not eligible to be changed. An example of the trouble that occurred when the Commons were wanting in a justification for issuing a law can be found in the Bill of Rights: '(they) do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom'. This way a revolutionary bill was served as a restoration of the law as it had always been.
Now to some examples of what parliament could or could not do: Could parliament make a law about the number of constituencies in the kingdom? No, this was part of the constitution and could not be changed. Could parliament forbid foxhunting? No, animal welfare was not a ground to issue laws. Could it forbid parents to hit their children? No, but it could forbid all kinds of a sexual acts on religious grounds. Could it forbid timber houses? No, but local communities could. Could it prescribe the thickness of certain cloths? No, but the guild could make extensive local regulations about who could make what and how it should be done.
The current system of Great Britain can be described as a parliamentary democracy, meaning that parliament dominates government by 'creating' the executive. It's the current end-point of a continuous rise in influence of the Commons. This rise in influence on the government started with assuming control over taxes, and continued with determining how these were to be spend. Up till the Glorious Revolution this influence was however kind of limited to the policy of government.
Deciding who was to be a member of the government was not part of the tasks of the Commons. In its long history it had with more or less success tried to remove some secretaries, but the royal prerogative of appointing the members of government had not been shaken till after the Glorious Revolution. During the reigns of King William III and Queen Anne the Commons did however become so strong that the position of individual secretaries in government became dependent on the support they had in the Commons.
An election result that differed from the previous could one therefore lead to the immediate replacement of secretaries. In essence both William III and Queen Anne were however still the undisputed leaders of government. This became different under George I, when Walpole effectively became prime-minister and thereby leader of the government in stead of the king.
|1) Parliamentary history of England, London 1806, v. 1 page 92 for this date in 1332|
|2) L'Esprit des Loix by Montesquieu, page 270 for his chapter about the English Constitution. In fact one will note that the above is the later simplification or adpation of his theory.|
|3) Ditto page 285: Le point le plus important de la legislation|