Text 3 legal history of Parliament

The history of the House of Lords can be roughly divided into four periods corresponding to the main periods of the British constitutional history. We should remember though that historical generalisations simplify reality.

1. The pre-Tudor formative period, which saw the Lords evolve from part of the royal court to a separate body, later coupled with the Commons.

2. From the mid-fifteenth century until 1688, which saw the advance of the Commons and which planted the seeds of parliamentary supremacy.

3. The seventeenth to early nineteenth century, during which the Lords still had considerable power and influence, playing a key role in the classical theory of mixed government, a role that has echoes today.

4. The mid-nineteenth century to the present day, which saw the rise of democratic ideas and made the House of Lords less important. Indeed its whole existence has become questionable. Some regard the House of Lords as at best a useless anachronism, at worst a bastion of undeserved privilege and a reactionary political force. Others regard the Lords as capable of providing a useful if limited political function.

As with other central institutions of the British constitution, the House of Lords originated as part of the apparatus of monarchy. The Lords were originally the great landowners of the realm “tenants-in-chief”, created as such by the monarch and transmitting to their descendants their property and the titles and power that went with it. Inheritance was originally based upon the feudal system under which every landowner owed allegiance to a superior landlord, with the monarch at the apex of the pyramid. The House of Lords was the King's Great Council of advisers, summoned and dismissed by the King. There was also an “inner” council of close advisers which developed into the Privy Council.

The “pure” feudal system did not survive the thirteenth century. Land became freely disposable and wealth, and therefore power, could be amassed through commerce and professional skills. This made it possible for people other than the hereditary landowners to aspire to political power, and led to the rise of the House of Commons. It is worthwhile noting that as a result of the reforms in land law that were made in the nineteenth century succession to peerages became governed by different rules from succession to the land itself. So even if we believe that property-holding is a legitimate reason for conferring political power (and many argue that this remains a key assumption of the constitution although not to be found in any legal rule), the modern House of Lords is difficult to explain on this basis. Nevertheless the history of the House of Lords reminds us that the development of the constitution is tied up with the development of the land law.

During the medieval period, law-making power lay mainly with the judges who in theory were supposed to declare the general and local customs of the realm (the common law). From the time of Magna Carta (1215) it was established that the royal power was limited by the rights of the tenants-in-chief, supposedly derived from custom. Laws were then, as now, enacted formally by the monarch but from the thirteenth century it was believed that laws made on the advice of Parliament could authoritatively declare the common law. “The word “Parliament” which in origin meant merely a parley or conference entered into official language about the middle of the thirteenth century. It described formal conferences between the King and his officials and a number of the tenants-in-chief summoned for that purpose”.

At that time the House of Commons, representing lesser groups of property-owners, was relatively insignificant but by the sixteenth century the royal practice of relying upon the Lords alone was rejected by the Lords themselves in favour of including the Commons. This spelt the beginning of a new role for the House of Lords and also the end of the medieval monarchy. During the reformation period the two Houses worked harmoniously together and had a close relationship with the common law courts, an important pointer to the future. Their practice of deciding by majority vote made them an efficient decision-making body.

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