The Great Council was not a representative, but a constituent body. All the King's immediate tenants-both the greater barons and the lesser barons, or knights— had a right to attend. This right is expressly recognized by Magna Charta, by which the King promised, when calling a Council for the granting of extraordinary feudal aids, to summon all tenants-in-chief-the greater barons (lay and spiritual) individually, and the others by writs addressed to the sheriff. This difference in the mode of summonswhich had existed for some time previously-marks the inferior position of the lesser barons, or knights. As a matter of fact, owing to the difficulty of attendance, their right gradually became more formal than real; until the Great Council became practically an assembly of the greater barons. (Taswell-Langmead, p. 226.)

The financial necessities of the Crown, however, required that the knights should attend, in person or by deputy; and the representative system already existing in the counties was naturally resorted to for this purpose. The first instance of the extension of the representative system to the National Council was at the Council of St. Albans, in 1213, which was attended not only by the bishops and barons, but also by the reeve and four men from each township on the royal demesne. Four instances of county representation, by writs directing the sheriff of each county to send to the Council a certain number of "discreet knights of the shire," occur before Simon de Montfort's famous Parliament of 1265. (Taswell-Langmead, pp. 230-5.)

The knights of the shire, however, representing as they did the landed gentry, were only a portion of the commonalty. The towns had already risen to wealth, liberty, and importance; and the representation of the prosperous and progressive class of burghers was necessary as a basis for really popular institutions.

To Simon de Montfort, in the reign of Henry III., belongs the glory of taking a step which led to the systematic representation of the boroughs as well as the counties. In December, 1264, he laid the foundations of the House of Commons, by issuing writs directing the sheriffs to return not only two knights from each shire, but also two citizens from each city, and two burgesses from each borough. (Hearn's Govt. of Eng., p. 48.) This famous Parliament met at London on 20th January, 1265, to deal not merely with the granting of supplies, but with the business of the nation generally. (Gneist, Eng. Const., p. 270.)

At the battle of Evesham, which took place shortly afterwards, Simon de Montfort was killed by the Royalist troops, and the party of the barons was broken up, but the precedents established during his triumphant career were never obliterated. During this period the county freeholders were, for the first time, associated with the mercantile and trading community, in a body which was destined within less than 100 years to become organized in strength and individuality, and to assume its position as the popular chamber in a national Parliamentary system. The precedent of 1265, although it was not regularly followed for many years afterwards, distinctly foreshadows the dawning outlines of the House of Commons.

There was a transition period of 30 years before Edward I.'s "Model Parliament " in 1295, in which the three estates were represented, and which sat and voted in three bodies the knights sitting with the greater barons, and the clergy and burgesses sitting separately. The last great stage in the evolution of the House of Commons was the gradual detachment of the knights from the greater barons, their union with the burgesses, and the consequent division of Parliament into two Houses; the House of Lords being the aristocratic and official chamber, and the House of Commons the representative chamber, consisting, as it does to this day, of representatives of the shires and representatives of the boroughs. The exact date of this development is uncertain, but it was certainly complete in the year 1347. (Taswell-Langmead, p. 262.) During the long reign of Edward III. (1327-77) the power of the Commons was consolidated, and they succeeded in establishing the three great principles that taxation without the consent of Parliament is illegal, that the concurrence of both Houses is necessary for

legislation, and that the Commons have a right to inquire into abuses of administration. Two events, in particular, occurred which marked the complete consolidation of the once separate communities, by their representation in a united House, as well as by the assimilation and unity of the taxpayers in the counties, cities, and towns; one was in 51 Edw. III. (1378), the appointment of a permanent Speaker, Sir Thomas Hungerford ; and the other was the imposition of a poll-tax on every adult person in the kingdom, except beggars. (Hearn's Gov. of Eng. 432; Gneist, Eng. Parl., 171.)

THE STATUTE OF GLOUCESTER.—The Act 9 Hen. IV. (1407) contains the first authoritative recognition and delimitation of the several functions of the King, Lords and Commons, and establishes the principle that the parliamentary bodies may deliberate apart from the King. "It shall be lawful for the Lords to treat among themselves, in the absence of the King, respecting the state of the Realm, and about the necessary means to help. And in like manner it shall be lawful for the Commons to advise among themselves in respect of the before-mentioned state, and means, &c. Saving always that the Lords, on their part, shall not report to the King any matter resolved on by the Commons, and assented to by the Lords, before the Lords and Commons have come to one opinion and concurrence in such matter, and then in the wonted way and form, to wit, through the mouth of the Speaker." (Gneist, Eng. Parl., p. 172.)

QUALIFICATION OF ELECTORS.-Laws relating to the qualification of electors are first met with during the reigns of Henry IV. and Henry VI. At first the deputies from the counties were nominated or appointed at general public meetings, held in connection with the County Courts, presided over and conducted by sheriffs, appointed by the King, and attended by all free men, or at least all freeholders. Proposals were put to these gatherings and carried by the assent and acclamation of those present, "termed the bystanders." This custom is said to have been a survival of the ancient method of doing public business, followed in those antique German assemblies described by Tacitus, in which the people of the community expressed by "acclamation" their approval of propositions submitted by their leaders. There is historical evidence that during the reigns of Edward I. and Edward II. all the freeholders of the counties, without regard to the tenure or value of their lands, were accustomed to vote at such meetings. The writs were directed to the sheriffs to hold the elections in "full county," when all the freeholders were in duty bound to attend.

By 7 Hen. IV. c. 15 (1405), a uniform and general franchise for the county was distinctly recognised; "all persons present at the County Court, as well as suitors duly summoned for any cause or otherwise," were required to attend to take part in a choice of members, and to contribute towards the wages of the chosen representatives, fixed at 4s. per day.

The first contraction of the county franchise is found in 8 Hen. VI. c. 7 (1429), which provided "that in future only freeholders of 40s. income shall take part in the elections." Shortly afterwards, by 10 Hen. VI. c. 2, it was provided that only 40s. freeholders “within the county" should be entitled to vote at county elections. By 23 Hen. VI. c. 14, it was enacted "that only notable knights and notable esquires and gentlemen of the county are to be elected, who might become knights (consequently possessed of £20 income from land), but not any yeomen thereunder." The reasons for these restrictive laws were thus stated in one of the above statutes: "that elections of the delegates have of late been made from among too large a number of people living in the same county, most of them having small fortunes, but fancying that each had the like right to vote as the knights and esquires, which may easily occasion murder and rebellion, strife and dispute, between the gentlemen and the rest of the people, if measures be not speedily taken to improve this state of things." (Gneist, Eng. Parl., p. 176.)

Those limitations in the county franchise lasted down to the Reform Act 2 and 3 Wm. IV. c. 45 (1832). With respect to the franchise for cities, towns, and boroughs, some difference of opinion exists, and the subject is somewhat obscured by the absence of

definite legislative provisions. The right to take part in elections in these communities seems to have depended upon charters, writs, customs, and municipal constitutions, in force in the respective places which had the right of returning members. It is believed by competent authorities that the old members for cities, towns, and boroughs were chosen by the free inhabitants and householders of those localities who were liable to borough rates (scot and lot). On the other hand Lord Holt was of opinion that only those were burgesses who held that description of freehold known as "burgage tenure," the original tenure under which freeholds in town, "formerly parts of the ancient demesne of the Crown," were held; under this system the right of voting was annexed to some existing tenement or house or to some spot of ground upon which a house had stood in ancient times. But it seems that, whatever was the original qualification, the control of elections in cities and towns eventually fell into the hands of Municipal Corporations, or wealthy landowners; hence the origin of so-called "rotten boroughs." The question as to who were, or ought to be, electors in boroughs, frequently became the subject of debates in the House of Commons. In 22 Ja. I. a

resolution was passed to the effect that, where there was no charter or custom to the contrary, the election in boroughs was to be made by all the householders, and not by the freeholders only. The defects, abuses and anomalies were not attacked until most of them were swept away by the Reform Act, 1832.

By the Reform Act, 1832 (2 and 3 Wm. IV. c. 45), important changes were made, both in the qualifications of electors and in the delimitation of constituencies. "The number of English county constituencies was increased from 32 to 82; 56 boroughs, containing a population of less than 2,000 each, were totally disfranchised, and 31 other boroughs, of less than 4,000 each, were required to send one representative instead of two. On the other hand, 22 new boroughs acquired the right to return two members, and 24 to return one member. In Scotland the town members were increased from 13 to 23-making 53 in all; while the Irish representatives were increased from 100 to 103. The next great change in the constituency of the House of Commons was made by the Reform Act of 1867-68 (30 and 31 Vic. c. 102). By this Act England and Wales were allotted 493 members, and Scotland 60, while the number for Ireland remained unaltered, and household suffrage was conferred on boroughs in England and Scotland. A still greater reform was effected by the Representation of the l'eople Act, 1884 (48 Vic. c. 3), and the Redistribution of Seats Act, 1885 (48 and 49 Vic. c. 23). The former introduced a service franchise,' extending to householders and lodgers in counties the suffrages which in 1867 had been conferred upon householders and lodgers in boroughs, and placed the three Kingdoms on a footing of equality as regards electoral qualifications; while the latter made a new division of the United Kingdom into county and borough constituencies, and raised the total number of members to 670, England receiving 6 new members, and Scotland 12." (Statesmen's Year Fook, 1900, p. 7.)

§ 15. "And by the Authority of the Same."

These words clearly show that, although on the face of the Act the Queen figures as the chief legislator, the Auctoritas by which the Constitution has been created is blended and conjoined in the Queen in Parliament. This is the modern practice in connection with the political organization of colonies and in the grant to them of the institutions of self-government. In the early stages of English and British colonization, the Crown, without parliamentary sanction, expressed or implied, but in the exercise of its admitted prerogative, was accustomed to grant to newly settled, ceded, or conquered provinces, Patents and Charters, containing directly or indirectly authority to establish local Legislative Assemblies endowed with the power to pass laws for the peace, order and good government of such countries:

"On obtaining a country, or colony, the Crown has sometimes thought fit, by particular express provisions under the Great Seal, to create and form the several parts of the Constitution of a new Government; and at other times has only granted general

powers to the Governor to frame such a Constitution, as he should think fit, with the advice of a Council, consisting of a certain number of the most competent inhabitants, subject to the approbation or disallowance of the Crown. In most instances there are three departments forming the colonial government, each of which deserves attention. 1st. The governor, who derives power from, and is substantially a mere servant or deputy of, the Crown, appointed by commission under the Great Seal. The criterion for his rules of conduct are the king's instructions, under the sign-manual. 2nd. The colonial councils, which derive their authority, both executive and legislative, from the king's instructions to the governor. 3rd. The representative assemblies chosen by certain classes of the colonial inhabitants. The right of granting this assembly is vested exclusively in the Crown, subject to after regulations by the local legislatures." (Petersdorff, Vol. v. p. 543.)

The constitutional right of the Crown, in exercise of its prerogatives, to grant Constitutions to colonies, has been recognized in a series of judicial decisions, some of which may be here cited in illustration of the system that once prevailed, under which the English, and afterwards the British, Parliament enjoyed no share in the organization and management of colonial settlements. The case of Kielley v. Carson (1842), 4 Moore's Privy Council 63, 7 Jurist 137, turned on the nature and constitution of the House of Assembly of Newfoundland, established in 1832 by virtue of a commission under the sign-manual of King William IV., appointing Sir Thomas Cochrane Governor of the colony, and authorizing him to convoke a Legislative Assembly; and on the question whether such Assembly had been granted power, or possessed inherent power, to commit a person to gaol for contempt, in attempting to interfere with one of its members out of doors. Baron Parke (Lord Wensleydale), delivering the judgment of the Judicial Committee, said:—

"To such a colony there is no doubt that the settlers from the mother-country carried with them such portion of its common and statute law as was applicable to their new situation, and also the rights and immunities of British subjects. Their descendants have on the one hand the same laws and the same rights, unless they have been altered by Parliament; and, on the other hand. the Crown possesses the same prerogative and the same powers of government that it does over its other subjects; nor has it been disputed in the argument before us, and therefore we consider it as conceded, that the sovereign had not merely the right of appointing such magistrates and establishing such corporations and courts of justice as he might do by the common law at home, but also that of creating a local Legislative Assembly, with authority subordinate to that of Parliament, but supreme within the limits of the colony, for the government of its inhabitants. This latter power was exercised by the Crown in favour of the inhabitants of Newfoundland in the year 1832, by a commission under the Great Seal, with accompanying instructions from the Secretary of State for the Colonial Department; and the whole question resolves itself into this, whether this power of adjudication upon and committing for a contempt was by virtue of the commission and the instructions legally given to the new Legislative Assembly of Newfoundland; for, under these alone can it have any existence, there being no usage or custom to support the exercise of any power whatever. In order to determine that question, we must first consider whether the Crown did in this case invest the local legislature with such privilege. If it did, a further question would arise, whether it had a power to do so by law If that power was incident as an essential attribute to a Legislative Assembly of a dependency of the British Crown, the concession on both sides, that the Crown had a right to establish such an assembly, puts an end to the case. But if it is not a legal incident, then it was not conferred on the Colonial Assembly unless the Crown had authority to give such a power, and actually did give it. Their Lordships give no opinion upon the important question whether, in a settled country such as Newfoundland, the Crown could, by its prerogative, besides creating the Legislative Assembly, expressly bestow upon it an authority not incidental to it of committing for a contempt, an authority materially interfering with the liberty of the subject, and much liable to abuse. They do not enter upon that question, because they are of opinion, upon the construction of the commission, and of its accompanying document, that no such authority was meant to be communicated to the Legislative Assembly of Newfoundland; and if it did not pass as an incident by the creation of such a body, it was not granted at all." (7 Jurist, p. 139.)

In the case of Phillips v. Eyre (1870), L.R. 6 Q.B., p. 1, the plaintiff sued a former Governor of Jamaica to recover damages for assault and false imprisonment, alleged to have been directed by the defendant after the proclamation of martial law during the

suppression of rebellion in the Island. The defendant pleaded an indemnity, under an Act passed by the Legislature of Jamaica, and assented to by himself on behalf of the Crown, after the rebellion was over, legalizing every act done by the Governor in arresting the rebellion by force of arms. The Legislature of Jamaica, at that time, consisted of a Legislative Council and Legislative Assembly, established not by an Imperial Act, but by a Commission under the Great Seal accompanied by royal instructions. The case turned on the power of the Crown to create such a Legislature in a settled colony. In delivering the judgment of the Court of Appeal, Mr. Justice Willes said:

"Doubts were suggested in this Court upon what was taken for granted in the argument and judgment in the Court below, namely, the power of the Crown to create a Legislative Assembly in a settled colony. Assuming, but by no means affirming that, as contended for by counsel for the plaintiff, the colony in question, though originally conquered from the Spaniards, is now to be deemed a settled as distinguished from a conquered or ceded one, we consider these doubts as to the power of the Crown and of the local Legislature to be unfounded. There is even greater reason for holding sacred the prerogative of the Crown to constitute a local Legislature in the case of a settled colony, where the inhabitants are entitled to be governed by English law, than in that of a conquered colony, where it is only by grace of the Crown that the privilege of selfgovernment is allowed; though where once allowed it cannot be recalled. In colonies distant from the mother country to which writs to return members to the Imperial Parliament do not run, it is essential, both for the due government of the country in dealing with matters best understood upon the spot, and with emergencies which do not admit of delay, and also for giving subjects there resident the benefit of a voice, by their representatives, in the councils by which they are taxed and governed, that the Crown should have the power of creating a local Parliament. Accordingly, it is certain that the Crown has, in numerous instances, granted charters under which Houses of Assembly and Legislative Councils have been established for the government of colonies, whether conquered or settled, and that such Councils and Assemblies have, from time to time, made laws suited to the emergencies of the colony,' which, of course, include all measures necessary for the conservation of peace, order, and allegiance therein. In effect, the inhabitants have been allowed to reserve the power of self-government, through their representatives in the colony subject to the approval of the Crown and the control of the Imperial Legislature. This opinion was reflected upon in the argument, but it is in accordance with just principles of government, with the law laid down by the text-writers, including Mr. Justice Blackstone; and it has now been drawn into doubt for the first time. We are satisfied that it is sound law, and that a confirmed act of the local Legislature lawfully constituted, whether in a settled or conquered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament." (Per Willes, J., Phillips . Eyre, L.R., 1 Q.B., p. 1.)

"The first important deviation from this rule was in the case of the colony of Quebec, which by statute of 1774 received an improved form of local government. The precedent was followed, in the year 1791, by Mr. Pitt's famous Canada Act, which constituted the two provinces of Quebec and Ontario. It has been declared by high authority that the reason for the introduction of Parliamentary action into the government of Canada was the desire to concede to the Roman Catholic colonists certain rights inconsistent with the severe Conformity statutes then existing, and with which the Crown had no power to dispense. But the application of the principle about the same time to the government of India, and, soon after, to Australian affairs, make it more probable that the change was really due to the growing extensions of Parliamentary influence over all departments of State. Be this as it may, the practice of the present century has been, whilst leaving to conquered acquisitions as much as possible their previous forms of government, to confer local Constitutions by Act of Parliament upon possessions acquired by settlement The course of proceeding has been fairly uniform. First, there has been a purely despotic government, when the colony has been ruled as a military position by a Governor and a handful of officials appointed by the Home Government. Then there has been a Constitution, with a Legislative Council, partly appointed by the Governor and partly elective. Of this Council the Crown officials have always formed part, but the executive has been unassailable by the Legislature, and responsible only to the Colonial Office; possessions in these two stages being technically known as 'Crown Colonies.' In the third stage, there have generally been two Houses of Legislature, both elective, or one elective and one nominee, and the executive has consisted of officials chosen for their Parliamentary position, and liable to dismissal, like ministers in England, in consequence of an adverse vote of Legislature. This is the era of Responsible Government.'" (Jenks' Gov. of Victoria, pp. 10-11.)