View of the State of Europe during the Middle Ages, Vol. 3Hallam, Henry
History
View of the State of Europe during the Middle Ages, Vol. 3
Hallam, Henry
Europe -- History -- 476-1492; Middle Ages
Ordinances which, if it were not for their partial or temporary
operation, could not well be distinguished from laws,[117] were often
established in great councils. These assemblies, which frequently
occurred in Edward's reign, were hardly distinguishable, except in name,
from parliaments; being constituted not only of those who were regularly
summoned to the house of lords, but of deputies from counties, cities,
and boroughs. Several places that never returned burgesses to parliament
have sent deputies to some of these councils.[118] The most remarkable
of these was that held in the 27th of Edward III., consisting of one
knight for each county, and of two citizens or burgesses from every city
or borough wherein the ordinances of the staple were established.[119]
These were previously agreed upon by the king and lords, and copies
given, one to the knights, another to the burgesses. The roll tells us
that they gave their opinion in writing to the council, after much
deliberation, and that this was read and discussed by the great men.
These ordinances fix the staple of wool in particular places within
England, prohibit English merchants from exporting that article under
pain of death, inflict sundry other penalties, create jurisdictions, and
in short have the effect of a new and important law. After they were
passed the deputies of the commons granted a subsidy for three years,
complained of grievances, and received answers, as if in a regular
parliament. But they were aware that these proceedings partook of some
irregularity, and endeavoured, as was their constant method, to keep up
the legal forms of the constitution. In the last petition of this
council the commons pray, "because many articles touching the state of
the king and common profit of his kingdom have been agreed by him, the
prelates, lords, and commons of his land, at this council, that the said
articles may be recited at the next parliament, and entered upon the
roll; for this cause, that ordinances and agreements made in council
are not of record, as if they had been made in a general parliament."
This accordingly was done at the ensuing parliament, when these
ordinances were expressly confirmed, and directed to be "holden for a
statute to endure always."[120]
It must be confessed that the distinction between ordinances and
statutes is very obscure, and perhaps no precise and uniform principle
can be laid down about it. But it sufficiently appears that whatever
provisions altered the common law or any former statute, and were
entered upon the statute-roll, transmitted to the sheriffs, and
promulgated to the people as general obligatory enactments, were holden
to require the positive assent of both houses of parliament, duly and
formally summoned.
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