1403.]

JUDICIAL POWER IN THE LORDS.

103

it appears that on the day on which the parliament was summoned, the knights of counties, citizens of cities, and burgesses of boroughs, were proclaimed by their names in the king's chancery in Westminster Hall, in the presence of the chancellor and steward of the king's household; and on their appearance, the parliament was adjourned to the Friday following, when it was regularly opened in the king's presence. In the speech of the chief justice, by the king's command, the commons were ordered to proceed to the election of their Speaker, and to present him, " come le manere est," on the next day; which was done.1

In the parliament of 1402 (3 Henry IV.) there is an instance of a grant of a subsidy by the commons, with the assent of the lords. "To the honour of God, and for the great love and affection which the poor commons of your realm of England have for you, their illustrious lord the king, the said poor commons, with the assent of the lords spiritual and temporal, grant to you, their sovereign, the subsidy therein mentioned."2

An attempt was made in the fifth year of Henry IV. (1403) to set up a claim for parliamentary protection or privilege. The commons stated, that according to the custom of the realm, the lords, knights, citizens, and burgesses, coming to parliament by the king's command, were under his especial protection and defence, and ought not to be arrested for debt, account, trespass, or other contract; and they prayed that if any person should so arrest any person coming to parliament, or any of his men, or attempt anything against the custom aforesaid, he should make fine and ransom to the king, and double damages to the party injured. The answer seems to refer the complainants to their legal remedy, it being, that "there was sufficient remedy in the case." But upon a complaint in the same parliament of a violent assault on a servant of one of the knights, a proclamation was ordered, requiring the delinquent to surrender himself to the King's Bench; and if he should not do so, he should be

1 Rot. Parl., Henry IV., p. 455. 2 Rot. Parl., Henry IV., p. 493.

attainted of the fact, and punished by damages, fine, and ransom. This was made the subject of a statute.1

In the parliament held in 1406 (7 and 8 Henry IV.), a statute, settling the succession of the crown, was ordered to be exemplified under the great seal; and in the exemplification, as entered on the roll, the knights, citizens, and burgesses assembled in parliament are represented as the procurators and attorneys,-" procuratores et attornati," -"of all the counties, cities, and boroughs, and of the whole people of the kingdom ('per universitates et communitates'), of the same counties, cities, and boroughs; and by the whole people of the same, lawfully constituted, according to the state, manner, and observance of the kingdom.” It was therefore (according to the Peers' Report) assumed, that by the usage of the kingdom, the knights, citizens, and burgesses, as then elected and returned, although elected and returned only by some, were to be considered as in effect procurators and attorneys for the whole, and had power to act for the whole; and that, for this purpose, they were assembled before the king, and the prelates, and lords, and all who, according to usage, ought to attend the parliament. This," it is added, "seems to have been intended as a legislative declaration of what was then considered as the true constitution of the legislature of the kingdom, established by the custom and usage of the kingdom, to give authority to the solemn act for the settlement of the crown."2

In the parliament held at Gloucester in 1407 (9 Henry IV.), we find the constitution of parliament finally settling into its present form. The king had assembled the lords spiritual and temporal in his presence, and a debate took place between them about the state of the kingdom, and its defence; and on the necessity that the king should have an aid and subsidy. The king demanded of the lords, what aid would be sufficient and requisite; who answered, that, considering the necessity of the king on the one side, aud 1 Rot. Parl., Henry IV., p. 542. Idem, p. 358. 2 Rot. Parl., Henry IV., p. 575.

Peers' Report, vol. i. p. 355.

1407.]

SEPARATE HOUSES OF LORDS AND COMMONS.

105

the poverty of his people on the other, no less aids could be sufficient than those which they then specify. The king then sent to the commons to cause a certain number of their body to come before the king and the lords; and the commons sent twelve of their companions, to whom the answer given by the lords was communicated. It was the pleasure of the king that the commons should report to their fellows, to the end that they might take the shortest course to comply with the intention of the lords. But the report having been made to the commons, they were greatly disturbed at it, saying and asserting it to be much to the prejudice and derogation of their liberties. The king became alarmed by the intelligence of the displeasure of the commons, and it is stated on the roll that "the king, after he had heard this, not willing that anything should be done at present, or in time to come, that might anywise turn against the liberty of the estate for which they are come to parliament, nor against the liberties of the lords,-wills, and grants, and declares, by the advice and consent of the lords, that it should be lawful for the lords to commune amongst themselves in this present parliament, and in every other in time to come, in absence of the king, of the state of the realm, and of the remedy necessary for the same. And that in like manner it should be lawful for the commons, on their part, to commune together of the state and remedy aforesaid. Provided always, that the lords on their part, and the commons on their part, should not make any report to the king of any grant, by the commons granted, and the lords assented to, nor of the communications of the said grants, before the lords and commons should be of one assent and accord in such matters, and then in manner and form as had been accustomed; that is, by the mouth of the Speaker of the commons. The king willing, moreover, by assent of the lords, that the communication made in that parliament, as before stated, should not be drawn into example in time to come, nor turn to the prejudice or derogation of the liberty of the estate for which the commons were then come, neither in that parlia

ment, nor in any other in time to come; but he willed that himself, and all the estates, should be as free as they were before."

ן יי

But notwithstanding these solemn arrangements, the rights of the commons were not observed, and the commons, in the parliament held in 1414 (2 Henry V.), made a protestation against statutes passed without their assent. In a petition addressed to the king, they assert it to be their liberty and freedom that there should be no statute nor law made unless they gave thereto their assent; "considering that the commons of your land, which is, and ever hath been, a member of your parliament, are as well assenters as petitioners; that from this time forward, on complaint of the commons of any mischief, asking remedy by the mouth of their Speaker, or by written petition, there be no law made thereupon, and engrossed as statute and law, neither by additions nor diminutions, nor by any manner of terms which should change the sentence, and the intent asked, by the Speaker's mouth, or the petitions given in writing; considering, our sovereign lord, that it is no wise the intent of your commons that if they ask you, by speaking or by writing, two things or three, or as many as they list, but that it ever stand in the freedom of your high regalie to grant which of them that you list, and to deny the remainder." To this the king's answer was as follows:-" The king, of his grace especial, granteth that from henceforth nothing be enacted to the petitions of his commons, that be contrary of their asking, whereby they should be bound without their assent;-saving always to our liege lord his royal prerogative, to grant and deny what he lists of their petitions and askings aforesaid." 2

Inconveniences and mistakes still continuing to arise from the mode of preparing the statute from the petition and an1 Rot. Parl., 9 Henry IV., ] p. 610.

2 Idem, Henry V., p. 22. This is the first instance on the rolls, of the use of the English language. Mr. Hallam has transcribed the petition in its "venerable orthography." (Middle Ages, vol. ii. p. 222.)

1422.]

BILLS SUBSTITUTED FOR PETITIONS.

107

swer, it became the practice, about the end of the reign of Henry VI., and the beginning of that of Edward IV., to reduce the petitions into the form of Acts of Parliament, with a title or heading, to the effect that "a certain petition was exhibited in this parliament, containing in itself the form of an act," "quædam petitio exhibita fuit in hoc parliamento formam actus in se continens." That mode continued for many years; but at length the title was disused, and a bill was drawn up, in the first instance, in the form of an act, and brought to the sovereign for his assent.1

The entry on the roll of 9 Henry IV. seems to have been expressly designed to settle the constitution of parliament; and—notwithstanding occasional disregard of its principle, in form or substance—it established the independent action of the house of lords, apart from the king and the commons, and of the commons apart from the king and the lords; whilst it also required the assent of both lords and commons in any report that should be made to the king. The commons had disclaimed all interference with judicial proceedings in parliament, which they left wholly to the lords. The lords also discontinued their original jurisdiction as the king's Great Council in parliament, retaining only an appellant jurisdiction over the superior courts of justice; for after this time, and indeed from an earlier date, no proceedings of original suits appear on the rolls of parliament. The two houses of parliament had, therefore, acquired the constitutional action that now exists. In other words, they had accomplished the separation of the regal or executive, from the legislative functions of the government; placing the latter in two distinct houses, representing the aristocratic and democratic classes of the people,-with distinct although similar functions,-with separate power of deliberation and with separate wills; although requiring joint concurrence in any measure that should be presented to the king, and his assent to it, to become a law.

HENRY VI. succeeded his father; but being a minor, the 1 Ruffhead's Statutes, vol. i., Pref. p. 16.