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."1

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.

parliament appointed a protector and council to govern during his minority. He added to the peerage the dignity of Viscount. In his reign the Wars of the Roses broke out between the rival houses of York and Lancaster. During Edward IV.'s occupation of the throne the parliament granted to him tonnage and poundage for his life; the act declaring "that tonnage was given for the defence of the realm, and especially for the safeguard and custody of the sea; and poundage for the safeguard and keeping of the sea." In the troubled time of the Wars of the Roses, we do not find any advance or improvement in the parliamentary system.

1 Stat. 12 Edward IV., cap. 3.

CHAPTER VIII.

CONSTITUTIONAL STATUTE LAW, AND COURTS OF JUSTICE.

FROM MAGNA CHARTA TO HENRY VII.-A.D. 1215-1485. Courts of Justice.-The King the Fountain of Justice.-Courts of Law. -King's Bench.-Common Pleas.-Exchequer.-Nisi Prius Courts. -Gaol Delivery.-Court of Chancery.-Courts of Appeal.-Inferior Courts. Sheriffs.- Coroners.-Justices of the Peace.-The Common Law.-Records of the Courts.--Earliest Statutes.-Characteristics of the Legislation of the Middle Ages.—Statutes Civil and Ecclesiastical. -Concerning the Liberty of the Subject.-Taxation without consent of Parliament.-Assembling of Parliament.-Mode of Election and Qualification of Electors of Knights, Citizens, and Burgesses.— Sheriffs.-Justices of the Peace.-Treason.-Benevolences.-The Clergy.-In Restraint of the Pope.-Against Heresy.

In the last chapter it was proposed to consider the progress of the Statute Law, separately, from the rise and growth of parliamentary procedure and privilege: and we now proceed to review the statutes passed to give effect to the advancing constitution, from Magna Charta to the commencement of the reign of Henry VII. But, before stating the laws, we will briefly advert to the means provided for the administration of the laws,-THE COURTS OF JUSTICE.

According to the theory of the constitution, founded on the ancient practice, the king is the supreme judge of the State. The Anglo-Saxon monarchs, in their progresses through their dominions, regularly discharged in person their judicial functions. "These were of a twofold nature: the ordinary authority of the inferior courts, and the preroga tive supremacy over all the inferior tribunals, called into

action when they were unable or unwilling to afford redress." William the Conqueror, and his successors, exercised these judicial functions at his palace, or Aula Regis; which was anciently the chief seat of judicature, both in criminal and civil cases. There, in whatever part of his dominions he for the time dwelt and kept his court, the Curia Regis was held, thrice in the year; and there he appeared on the seat of justice, wearing his crown, and arrayed in royal attire. His frequent absence from the kingdom led to the appointment of Justiciars to represent the king's person, to hold the Curia Regis, and to dispense justice on his behalf. To them the sovereign resigned the arduous and responsible duties of a judge; but the theory still subsists, that the king is the fountain of justice, and, through his judges, the administrator of it; although he cannot now resume his functions, which the constitution has committed to the judges, and to them alone.2

We have seen that the inconvenience which arose from the Curia Regis following the person of the king wherever he removed, was one of the grievances of Magna Charta; which provided that "common pleas shall not follow the king's court, but shall be holden in some place certain."3 In consequence of this provision, a new court of justice, called the Common Bench, or COMMON PLEAS, was established, to sit permanently in Westminster Hall, as the place certain. This court consisted of a chief justiciar, or justice, and other justices (in our day four puisne justices), with jurisdiction to hear and determine common pleas, or civil suits, between subject and subject. But as to pleas of the crown, which include all crimes, felonies, and misdemeanours, they continued to be under the exclusive jurisdiction of the Curia Regis.

But the Curia Regis itself soon afterwards ceased to be dependent on the movements and personal presence of the king; and it subsided into a court of much less pomp and 1 Palgrave's Commonwealth, cap. 9, passim. 2 Madox's Exchequer, vol. i. p. 787.

3 See p. 56, ante.