William Stubbs.

The constitutional history of England in its origin and development, Volume 3 online

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in the opening speech, generally in the order in which the chancellor
had arranged them. Those matters took sometimes the form of
questions ; they were fi-equently repeated by the chancellor or some
officer of state, or by the speaker himself, to the commons; the
answers might either be communicated to the king by the speaker,
as soon as the commons had considered them ; or they might be
made the subject of a conference with the lords ; or they might
be reported to the lords, and be sent up with the answers of
the lords ; or they might be kept in suspense till the conclusions
of the lords were known, and then be drawn up in concert witi
or in opposition to them. On this point, which was one of some
importance, both opinions and practice differed; the occasions
on which those differences illustrate constitutional history have
been noticed as we have proceeded. The causes of the calling
of parliament were in 1381 repeated to the conmions by the
lord treasurer in the king^s presence, and then at their request
explained by the chancellor^; in 1382 the bishop of Hereford
laid before lords and commons together * in more especial man-
ner' the occasions of summons^; in 1377 Richard le Scrope,
steward of the household, repeated the charge to the commons
in the presence of the king and bishops*; and in 1401 Sir
Arnold Savage ", when admitted as speaker, repeated to the king
and lords the matter of the opening speech, ' to assure his own
memory, in brief words, clearly and in accordance with its

' See Hatsell^B Precedents, ii. 230-258. The precedents there alleged
begin in 1604; nee also speaker Popham's speech in 1580; ib. p. 23a.

' Hot. Pari. iii. 99, 100 : in all these points it is needless to give more
than a single illustration ; the practice from the reign of Edward II to that
of Henry V varied so frequently that to attempt a complete dasaficatkn
of instances would be to give an abstract of the whole of the Rolls of
parliament.

" Rot. Pari. iii. 133.

* Rot. Pari. iii. 5.

» Rot. Pari. iii. 455.



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^,] Conferences of the two Houses. 457

essence.' When the matter of the questions was thus ascertained, Joint
the commons might ask for the nomination of a committee of tioni of
lords to confer with them : in 1377 we have seen them naming oommona
the lords whose advice they de&ired; in 1381 ttie lords insisted
that the commons should report their advice to them and not
they to the commons; in 1378 the lords proposed a conference
by a joint committee; and in 1383 the king chose the committee^.
In 1402 Henry IV made it a matter of favour to allow the com-
munication; but after his concession made, in 1407, that the
money grants should be reported to him by the speaker of the
commons, the royal objections, which no doubt arose from the
wish to balance the two houses against one another in order
to obtain larger money grants, were withdrawn. If no question
arose upon the subject of the opening speech, the commons
sometimes returned an address of thanks to the king for the
information given them. This may have been always done, but
it is only now and then mentioned in the rolls'.

437. Although the subjects of the royal questions and of the Money
conferences of the two houses would necessarily embrace alldiwuned
matters of policy and administration on which the crown re-^* ^*
quired or allowed itself to be advised, the most frequent and
most definite points discussed in them were supply and account.
On these points, when the king was present, generalities alone,
as a rule, were uttered ; it was only in some great strait or in
contemplation of some grand design, that figures were mentioned.
It would seem to have been usual for the king to send a com-
missioner or two to discuss his necessities with both houses ;
just as he communicated with the clerical convocations when he
wanted a grant. Thus in 1308 we find Thomas of Lancaster
and Hugh le Despenser carrying a message from Edward II to

' See above, vol. ii. pp. 59a, 593.

* See Rot. Pari. lii. 486. In 1404 Sir Arnold Savage asked that the
king would send certain lords to confer with the commons, and when that
was granted, that certain commons might go to confer with the lords ; Rot.
Pari. iii. 533.

* In 1401 the commons (under Arnold Savage) thanked the king for the

rdch with which Sir William Thiming had opened parliament ; RDt. Pari.
455. In 140a there was an address a few days after the opening of the
session, chiefly of gratitude ; ib. p. 487.



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458 Constitutional History. [chab.

Financial the lords^, in 1343 and 1344 Bartholomew Burghersh, as the
laid before king's envoj, and in 1372 Guy Brian, laid the king's financial
condition before the lords and commons together '. Bat the
most perfect illifttration of this proceeding is that of the year
1433, when lord Cromwell made the interesting financial state-
ment from which we learn so much of the nature of the revenue*.
On the 1 8th of October, 1433, Cromwell, being then treasurer,
laid before the king a petition containing certain conditions on
which he had undertaken the office : he explained that the royal
revenue was insufficient by a sum of £35,000 for the royal ex-
penditure, but as this fact could not be understood without an
examination of the accounts of the exchequer, he prayed that
the lords might be charged to examine the accounts and have
the record enrolled, and to give diligence that provision should be
made for the king^s necessities ; that he himself should be au-
thorised to give a preference in payment to the debts of the house-
hold, the wardrobe, and necessary works ; that no grants should
be made without information to be laid by the treasurer before
the council, and that he should in his office of treasurer act as
freely as his predecessors, receive the help of the lords, and
incur no hindrance or odium in the discharge of his duties. Hie
king granted the petition : thereupon the accounts were read
before the lords : subsequently the treasurer was by advice of
the lords diarged to lay the state of the kingdom, in the same
way, before the commons in their common house on the follow-
ing day : and this was done \ Although the occasion was ex-
ceptional, the manner of proceeding was probably customary.
Form of 438. The result of the conferences with the lords and with

grants of

money. the treasurer on financial questions was the grant of money.
On this point we have circumstantial documentary evidence
from the very first ; both in the writs by which the king, whilst
ordering the collection of the taxes, carefully explains the occa-
sion of the grant and states by whom and in what proportions
it is granted ; and very frequently in the * form of grant * the

^ See above, vol. ii. p. 319.

* See above, vol. ii. p. 424 ; Bot. Pari. ii. 137, 157.

* See above, pp. 117, 118.

* Kot. ParL iv. 432-459.



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XX.] Form of Subsidies. 459

schedule of directions for collection which the inrantors hayeOrmnts

made by
drawn up and presented, sometimes as a condition, sometimes the two

as an appendage, to the grant. After the date at which the two together:

houses began to make their grants on one plan, ceasing to vote cqznmons

their money independently, and clothing the gift in the form consent of

of tenths and fifteenths, woo], tunnage and poundage, and other

imposts which affected all classes alike, the money grant took a

more definite form ; and from the end of the reign of Bichard II

all grants were made by the commons with the advice and assent

of the lords in a documentary form which may be termed an act

of the parliament. Of these we have had many examples ; we

know them to have been the result of a conference between the

lords and commons, but, with the exception of the discussion

on the poll-tax in 1377^ we have very seldom any details of

debate upon ihem, or of the exact steps of the process by which

they became law. The practice of three readings in each house. Money bills

the possible speaking, suggestion of alterations and amendments,

all the later etiquette of procedure on money bills, will be sought

in vain in the rolb of the medieval parliaments. The practice

of thrice reading the bills appears however in the journals of

the two houses so early, and is from the very first parliament

of Henry VJJLi r^;arded so clearly as an established rule, that it

must have full credit for antiquity : it was a matter of course \

439. Scarcely more light is shed on the detaib of legislative Legislative

procedure. On this point we have already concluded that both ^ °^*

the king and the several members of both houses and the houses

themselves had the right of initiation ' : Edward III of his own

good will proposed to remedy the evils of purveyance*; the

lords proposed the legislation by which peers are entitled to be

* See above, vol. iL p. 437.

' In the lint parliament of Henry Ym, on the asrd day of the aeedon
'addacta eat a domo inferiori* 'biUa de ooncesaione subodii quae leeta
fait aemel com proviso adjuogendo pro mercatoribua de ly hansa Theatoni-
conun.' On the 34th day the proviso was read and expedited; on the
a 7th it was sent down to Uie conunona ; on the 39th the bill of the subaidy
was delivered to Sir Thomas Level and his ccnnpanions. The plan was thus
in fall working. Lords' Joamals, i. pp. 7, 8.

> See above, vol. ii. pp. 588 sq.

* Above, v(d. iL p. 414.



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4^0



Constitutional History.



[chap.



Initiation of
lefdslation.



Bills sent
downfh>m
the lords
to the
commons.



Bills in the
house of
commonSt



Private
petitions.



tried by their peers in parliament ^, and on the petition of the
commons most of the legislation of the middle ages is founded.
The kiog's projects for the alteration of the law would be laid
by the chancellor before the house of lords, and after discussion
they would go down to the commons: a similar course was
adopted in all cases in which the legislation began in the house
of lords or on petition addressed to them. When the act^ peti-
tion, or bill had reached the requisite stage, that is, as it must
be supposed, had been read three times, it was endorsed by the
clerk of the parliament 'soit bailie ^ aux communs'; it was
then sent down to the lower house by the hands of some of the
judges or legal advisers of the parliament, with the message
informing the commons of the subject of the bill and asking
their advice •.

The practice of the house of commons was analogous ; there
also a proposition for the change of the law, or for the remedy
of a grievance, might originate in either a private petition of
an individual aggrieved,, or a proposition by a particular mem-
ber, or a general petition of the house. The custom of present-
ing private petitions to the house of commons, desiring them
to use their influence with the king, came in first under
Henry lY^ These petitions would require to be sorted, as did

* Above, vol. U. p. 389.

' See Hot. Pari. Hen. VIII, pp. oxcvii, ccvi, ocix, Sm,

' See below, p. 473. The form in the Iiords* Journals of 1510 was this :
'Jan. 94 Beceptae sunt quatuor billae legendae, una pro libertatibna
eodesiae Anglicanae, una pro retomis fidsis, &c. BiUa pro reformatioiie
ecclesiasticae libertatis bis lecta tradita fiiit attomato et soliicitatori regiis
reformanda et emendanda, 8cg* 'Die 5° Lecta est Billa concemeDS
ecclesiasticas libertates et jam bis lecta ; Item, &o.* ' Die 7° Item eodem
die lecta est tunc tertia vioe billa concemens libertates eoclesiae Angli-
canae quae unanimi omnium dominorum tunc praesentium fuit approbafea
et admissa;' 'Item per dominos datae erat in mandatis derico parliament
et attomato et soliicitatori regiis quod crastino in mane defeirent ad
domiim inferiorem billam de ecclesiasticis libertatibus, &c.' 'Die 8°
Billa de libertatibus ecclesiasticis, &c., missae sunt in domum communem ;
nuncii clericus parliament! et attomatus regis' ; vol. i. pp. 4-6. Bills re-
lating to the crown were sent down by two judges; oUier messages by
masters in chancery ; the commons sent up Uieir bills by one member,
either the chairman of committee of ways and means or the member in obaigt
of the bill, accompanied by seven others. This was altered in 1817 ami
1855 ; see E. May, Treatise on Parliament, pp. 435-437.

^ Hot. Pari. iii. 564. Every possible vanation is found in the heading
of the petitions ; some are to the king, others to the king and oonneil.



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oommons.



XX.] Legislative Proceedings. 461

those addressed to the king and lords ; but the house did not Bills sent
yet, so far as can be seen, appoint a committee of petitions ; the commons to
matter was arranged between the clerk and the whole honse.
Such private petitions as seemed to merit the consideration of
the commons were after examination sent up to the lords with
the note prefixed ' Soit bailie anx seigneurs V &i^d there passed
through the further stages before receiving the king^s assent ; 'soit
fait comme il est desir^.' All these are of the nature of what are
now called private bills ; a proceeding half legislative and half
judicial ; the result may be termed an act of parliament, but it
was not a statute, and instead of appearing among the laws of
the realm was certified by letters patent under the great seal.

440. The common petitions of the house were a much more Common
weighty matter. They were the national response to the king's JSehoSeof
promise to redress grievance& They were the result of deilibera- ^
tion and debate among the commons themselves, whether they
originated in the independent proposition of an individual mem-
ber, adopted by the house as a subject of petition, or in the
complaints of his constituents, or in the organised policy of a
party, or in the unanimous wish of the whole house. Un-
questionably they went through stages of which the rolls contain
no indication before they were presented as the * common peti*
tions^' The history of this branch of parliamentary work has
already been illustrated as fully as our materials allow; the
articles of the barons at Bunnymede and at Oxford, the petitions
of the whole community at Lincoln in 1 301, at Westminster in
1309 and 1 3 10, mark the first great stages of political growth
in the nation. They are initiations of legislative reform, as
much as the great statutes of Edward I. The common petitions
of the fifteenth century, the petty gravamina, the minute details

to the king, lords, and commons, to the lords and commons, and to the
commons alone. The latter request the commons to mediate with the
king and council.

^ See instances in Hot. Pari. iv. pp. 159, 160 iq., and generally from the
reiffn of Henry V onwards.

' In 1433 the merchants of the Staple sent in a petition to the lords ; * la
quelle petition depuis fuist mande par mesmes lea Seigneurs as ditz com-
munes pour ent avoir lour avys, les queux communes mesme la petition
rebaill^rent come une de lour communes petitions '; Rot. Pari. It. 950. li
(is very rarely that we find such an amount of detaaL



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46% Constitutional Eistory. [chap.

d*^ih>m ^^ amendments of law, are the later developments of the prin-

the proceed- ciples boldly enunciated in those documents : and the statutes

iniw of con- r j

vocation* based on the common petitions bear on the &ce evidence of

their unbroken descent. It is not improbable that this process
was identical with that by which in the discussions of the eccle-
siastical convocations the gravamina of individuals, the refor-
manda or proposed remedies, and the a/rticuM cleri or completed
representations sent up to the house of bishops, are and have
been from the very first framed and treated \ The gravamina
of individual members of convocation answer to the initiatory
act of the individual member in the commons, and the * articuli
cleri' to the 'communes petitiones'; both expressions may be
traced back to the earliest days of representative assembliea.
In the reign of Henry m we find gravamina and articuli among
the clergy; in the reigns of John, Heniy HE, and Edward I we
have oHicuU and occasionally gravamina among the laity.
From the reign of Edward m the king promises in the opening
speech to redress the grievances of his subjects; and from the
year 1343 the petitions of the commons are presented in a roll
Obscurity of articles, almost exactly resembling the articuli clerL Tet
method of here again except for this glimpse of light we are in complete
^ ' darkness as to the exact steps of proceeding. There was a roll

of petitions, on which, as we learn from Haxey's case, it was not
very difficult to obtain the entry of a gravamen, which the pru-
dence of the house, were it wide awake, could scarcely have
allowed to pass. It cannot be believed that the articles of
Haxe/s petition, touching the number of ladies and bishops at
court, could have been read three times and approved by the
house, or, as is the practice in convocation, had been adopted
by two-thirds of the members ; yet if it were not, it is difficult
to understand how the custom of three readings can be r^arded
as an established rule. By some such process however the
common petitions must have been authenticated; they were
adopted by the house as its own, and sent up through the

' See the standing orders of the lower house of oonvooation, drawn up it
is believed in or about 1732 by bishop Gibson; and Gibson*8 Synodos
Anglicana, 00. xiL xiiL



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XX.] Form of StatuU. 463

house of lords to the kimr. Even this we only learn from the Adoption of

*. 1 -i o . the form

enacting words of the statutes, and from a rare mention on of bills,
the rolls of the cases in which the lords joined in the king's
refusal. The statutes are made by the king with the advice
and consent of the lords spiritual and temporal ; the petitions
are answered *le roi le veut' or *le roi s'avisera' with the
advice of the lords. Towards the close of our period the form
of bill drawn as a statute has begun to take the place of peti-
tion. This custom was introduced first in the legislative acts
which were originated by the king ; the law proposed was laid
before the houses in the form which it was ultimately to take.
It was then adopted in private petitions which contained the
form of letters patent in which a favourable assent was
expressed ^. The form was found convenient by the commons
in their grants, and by the king in bills of attainder ; it became
applicable to all kinds of legislation, and from the reign of
Henry YII was adopted in most important enactments '.

We have already traced the efforts made by the commons to Prooess of
secure the honest reproduction of the words of their petitions abiu
in the statutes founded upon them ; that object was more per- oommous.
fectly secured by the adoption of the new form, the promulga-
tion of a new law or act in the exact form in which it was to
appear, if it passed, eventually in the statute roll. In this form
we can more distinctly trace its progress : after the due readings
and final adoption by the commons, it was sent up with the
inscription ' Soit bailie aux seigneurs/ and was considered and
adopted or rejected by the lords*. If they accepted it, it was

^ A good instance is the king's act on purveyance in, 1439 ; Bot. Pari.
V. 7t 8 : ' quaedam cedula sive billa oonunonibus praedictis de mandate
ipsius domini regis exhibita fnit et liberata sub hac verborum serie.* The
act for the attainder of Henry VI and his partisans in 1461 was brought
forward as ' quaedam cednla formam actus in se oontinens' ; Bot. Pari. v.
476. Private petitions in this form are found ib. iv. 323, etc.

' See Rot. Pari. vi. 138, &c. It is to this form of initiation that the
process of readings, committals, and report, are most easily applied ; and
they appear very early in the Journals; thus a Edw. VI Dec. 10. 'The
bill for levying of fines in the county palatine of Chester ; committed to
Mr. Hare. Jan. 8th: 'To draw a biU for the absence of knights
and burgesses of parliament — Mr. Goodrick, Mr. Arundel*; Commons'
Journals, i. 5, 6.

* The first proofii of the three readings occur in the first Journals of the



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4^4 Constitutional History. [chap.

Mutual again endorsed * Les seigneurs sent assentus' and then submitted
to the king. The same process was observed in statutes that
originated with the lords : the commons recorded their assoot,
' Les communs sent assentus,' and the bills went up to the king
and his council.
Enactioff 441. The legislative act, when it had received the final form

the king, in which it was to become a part of the national code or statute
roll, appeared as the act of the king. The enacting words as
they appear in the first statute of Henry Vll are these * The
king .... at his parliament holden at Westminster .... to the
honour of God and Holy Church and for the common profit of the
realm, by the assent of the lords spiritual and temporal and the
commons in the said parliament assembled and by authority of
the same hath do to be made certain statutes and ordinances
.... Be it enacted by the advice of the lords spiritual and tem-
poral and the commons in this present parliament assemUed
and by the authority of the same \" Sometimes assent as well
as advice was again expressed, and the threefold expression of
assent, advice, and authority may be regarded as the declaration
of the function of the estates in legislation. We have in former
chapters dwelt on the importance of these formulae; we have
seen how, during the fourteenth century, petition or instance was
the word used of the commons' share, and that it expressed the
truth that most of the legal changes were suggested by their
petitions. Under Richard II the mention of petition drops out,

CommonB ; the first reading is simply noted ; on the second reading fbUowt
the direction 'logrossetur'; on the third the note 'Jadioium'; see Gam-
mons' Journals, i. 1 2, &c The form however in which the three readings
are recorded before the royal assent is given runs thus ' Qua quidem per-
lecta et ad plenum intellecta eidem per dicta regem &c. &c fiebat re-
sponsio'; Lords' Journal, i. p. 9. This form occurs early in the reign of
Henry VI and must be understood to have then the same meaning as in
the first of Henry VIXI. See Hot. Pari. v. 363 : ' Quae quidem peiitio ei
oedulae transportatae fuerunt et deliberatae communibus regni Angliae in
eodem parliamento existentibus ; quibus iidem communes assensum suum
praebuerunt sub hac forma, *'a ceste bille et a les cedules a ycest bille aa-
nexez les Commyns sount assentuz " ; quibus quidem petitione, oedulis et
assensu, in parliamento praedicto lectis auditis et plenius inteUectis, de
avisamento et assensu dominorum spiritualium et temporalium in eodem
parliamento existentium, auotoritate ejusdem parliamenti respondebatnr
eisdem in forma sequenti.*
^ Stat. I Hen. VII, preamble, Statutes, ii. 500.

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XX.] Form of Enactment. 465

and occasioDBlly the full equality of the commons is expressed introduo-
by the form ' assent of the prelates, lords, and commons/ The form 'by
statutes of Henry IV and Henry V are passed *by the assent ofthewme.'
the prelates, dukes, earls, barons, and at the instance and special
request of the commons,' or 'by the advice and assent of the lords
spiritual and temporal, and at the prayer of the commons/ The
same form is observed during great part of the reign of Henry
VI in the statutes ; but the assent of the commons is put for-
ward in the act by which the protector is appointed in 1422 *,
and in other acts of a less public character : the assent, or advice
and assent, of the commons as well as of the lords is likewise
expressed in the borrowing powers granted to the council ^. In
the nth year of this king the expression ' by the authority of
parliament ' first appears among the words of enactment in the
preamble of the statutes '. This particular form seems to have
been used some years earlier in the separate clauses of statutes,
although not in the heading of the roll : and in this way it is
found as early as the year 1421 * : it was also used in petitions,
in letters patent drawn up in compliance with private petitions,
and in the bills introduced in the form of statutes: thus in 1442
a petition passed the commons for the endowment of Eton
College, in which that house was requested to pray the king to



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 48 of 68)