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

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grant letters patent under his great seal by the advice and assent
of the lords spiritual and temporal in this present parliament
assembled, and by authority of the same parliament^ : in 1439
the bishop of S. David's and the dean and chapter of S. Paurs
had letters patent in which the same form was used \ in 1423
the executors of Henry V had letters patent under the great
seal by the authority of the parliament '. From the year 1445
it becomes a regular part of the enacting and ordaining words

* Rot Pari. iv. 174. ' Ibid. iv. 276; see above, p* 254.
» Statutes, ii. 278. * Rot. Pari. iv. 130.

. ' Rot. ParL y. 45. Instanoee of the form in petitions will be found as
early as the reign of Henry IV if not earlier ; see Rot. Pari. iii. 530, 656 ;
iv. 35, 40, 43, &c., 323, 325, 546. The endorsement on writs *by authority
of the parliament* does not imply that the parliament was sitting at th.*
time, but that the king was acting in virtue of some power bestowed by the
parliament by a special act. See Nicolas, Ordinances, &o., vi. p. oov. and
also £lsynge, pp. 282 sq.

• Rot. Pari. iv. 206. 207; v. 8, 9, 13.

VOL. UI« H h



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4^6 ConstitutioTtal History. [chap.

which head the roll *. The form used by Henry Vli has lasted
with few unimportant variations down to the present day.
Modern In modem times — ^that is, since parliamentary machinery

onbUls!^ has been matured — a bill before becoming an act has to go
through several distinct stages. In the house of commons the
proposer asks leave to introduce it, and it is ordered ; it passes
its first reading, in most cases without being discussed on its
merits; it comes to the second reading, is debated clause by
clause, receives amendments and passes into committee: it is
committed and perhaps recommitted : it is brought up for a
third reading, debated again if necessary, read a third time and
passed. It goes through a similar process in the house of lords,
where however the bills are presented without formal notice.
If it has originated in the upper house it does not escape like
manipulation in the lower. After the report is brought up it b
printed, or, as was until recently the case, ingrossed. After passing
both houses it is still subject to the royal veto, although for more
than a century and a half that right has not been exercised \
Probable 442. Of the minute points of this carefully arranged proceed-
^t?^^ ing some are doubtless of modem growth ; but the substance
of the programme must be ancient. The three readings of
the bills are traceable as soon as the form of bill is adopted ;
the committees for framing laws find a precedent as early as
1340, when a committee of the two houses was appointed to
draw up the statutes framed on the petitions ' j they are spoken
of by Sir Thomas Smith as an essential part of legislative pro-
cess ; ' the committees are such as either the lords in the higher
house or the burgesses in the lower house do choose to frame
the laws upon such bills as are agreed on and afterwards to be
ratified by the same houses ; ' after the first or second reading
the bill is ordered to be ingrossed ; it is read a third time, then
the question is put, and traces of this procedure are found in
the earliest journals of both houses : the silence of the rolls
implies nothing as to the novelty of the practice.

* Statutes. 11. 336 ; Rot. Pari. v. 70.

* Sir T. Erskine May. Treatise on Parliament, pp. 468 sq.
■ Rot. ParL ii. 113 ; above, vol. ii. p. 38a.



processes.



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XX.] 'Procedure of Parliament, 467

We look in vain for illustrations of the rules of debate, and of
the way in which order was maintained, or for any standing orders.
Yet as soon as the journals begin, order, debate, and the by-laws
of procedure, are all found in working. We are compelled to
believe that many of them are ancient.

In default then of anything like contemporary evidence, we Sir Thomas
may accept Sir Thomas Smith's account of the holding of parlia- account of
ment, notwithstanding the strong infusion of Tudor theory with of parlia-
which it is inseparably mixed, as approximately true of the
century that preceded : the extract is long, but it needs no
apology, and will supply all that is wanted here in respect of
the procedure of the two houses : —

443. 'The most high and absolute power of the realm ofcoMtitution
England consisteth in the Parliament : for as in war where the Uamentf'^
king himself in person, the nobility, the rest of the gentility
and the yeomanry are, is the force and power of England ; so
in peace and consultation where the prince is, to give life and
the last and highest commandment, the barony or nobility for
the higher, the knights, esquires, gentlemen a^d commons for
the lower part of the commonwealth, the bishops for the clergy,
be present to advertise consult and show what is good and
necessary for the commonwealth and to consult together ; and
upon mature deliberation, every bill or law being thrice read
and disputed upon in either house, the other two parts, first
each apart, and after the prince himself in the presence of both
the parties, doth consent unto and alloweth. That is the prince's
and whole realm's deed, whereupon justly no man can complain
but must accommodate himself to find it good and obey it.

' That which is done by this consent is called firm, stable and
sanctum, and is taken for law. The parliament abrogateth old Power of the
laws, maketh new, giveth order for things past and for things ^^
hereafter to be followed, changeth rights and possessions of pri-
vate men, legitimateth bastards, establisheth forms of religion,
altereth weights and measures, giveth form of succession to the
CHFwn, defineth of doubtful rights whereof is no law already
made, appointeth subsidies, tailes, taxes and impositions, giveth
most free pardons and absolutions, restoreth in blood and name,

H h 2

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4^8 Constitutional History. [chap.

Represent- as the highest court, condemneth or absolveth them whom the

ter. prince will put to trial. And to be short, all that ever the

people of Home might do either in centwriatis comiiiis or trilnUisy
the same may be done by the parliament of England, which re-
presenteth and hath the power of the w'hole realm, both the head
and body. For every Englishman is intended to be there pre-
sent, either in person or by procuration and attorney, of what pre-
eminence, state, dignity or quality soever he be, from the prince,
be he king or queen, to the lowest person of England. And the
consent of the parliament is taken to be every man's consent.

Jud^s of ' The judges in parliament are the king or queen's majesty,
the lords temporal and spiritual ; the commons represented by
the knights and burgesses of every shire and borough town.
These all or the greater part of them, and that with the consent of
the prince for the time being, must agree to the making of laws.

Officers. ' The officers in parliament are the speakers, two clerks, the one

for the higher house the other for the lower \ and committees.

The speaker. 'The speaker is he that doth commend and prefer the bills
exhibited into the parliament, and is the mouth of the parlia-
ment. He is commonly appointed by the king or queen though
accepted by the assent of the house '.

The clerks. ^ The clerks are the keepers of the parliament rolls and
records, and of the statutes made, and have the custody of tiie
private statutes not printed.

Committees. ' "^^ committees are such as either the lords in the higher
house, or burgesses in the lower house do choose to fi-ame the
laws upon such bills as are agreed upon, and afterward to be
ratified by the said houses '.

Writs of *The prince sendeth forth his rescripts or writs to every

duke, marquess, baron and every other lord temporal or
spiritual who hath voice in the parliament, to be at his great
council of parliament such a day (the space from the day of the

* See above, p. 451.

' This is a mark of Tudor innovation. See Coke, 4th Inst. p. 8 : 'for avoid-
ing of expense of time and contestation the nse is, as in the oong^ d*e8lire
of a bishop, that the king doth name a discreet and learned man whom the
commons elect.'

' See above, p. 466.



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XX.] Ceremonies of Parlimnent, 469

writ is commonly at the least forty days^); he sendeth also Blectlons of
writs to the sheriffs of every %\kvce to admonish the whole shire
to choose two knights of the parliament in the name^ of the
shire, to hear and reason and to give their advice and consent
in the name of the shire, and to be present at that day ; like-
wise to every city and town which of ancient time hath been
wont to find burgesses of the parliament, so to make election,
that they might be present there at the first day of the Parlia-
ment. The knights of the shire be chosen by all the gentlemen
and yeomen of the shire present at the day assigned for the
election; the voice of any absent can be counted for none.
Yeomen I call here, as before, that may dispend at the least
forty shillings of yearly rent of free land of his own. These
meeting at one day, the two who have the more of their voices
be chosen knights of the shire for that parliament ; likewise by
the plurality of the voices of the citizens and burgesses be the
burgesses elected.

'The first day of the parliament the prince and all the lords, Meeting of
in their robes of parliament, do meet in the higher house, where,
after prayers made, they that be present are written and they
that be absent upon sickness or some other reasonable cause,
which the prince will allow, do constitute under their hand
and seal some one of those who be present as their procurer or
attorney, to give voice for them, so that by presence or attorney
and proxy they be all there ; all the princes and barons, and
all archbishops and bbhops, and, when abbots were, so many
abbots as had voice in parliament ^ The place where the The pariia-
assembly is, is richly tapessed and hanged ; a princely and royal
throne, as appertaineth to a king, set in the middest of the
higher place thereof. Next under the prince sitteth the chan-
cellor, who is the voice and orator of the prince. On the one
side of that house or chamber sitteth the archbishops and bishops
each in his rank, on the other side the dukes and barons.

* In the middest thereof upon woolsacks sitteth the judtres of Armnge-

. mentofthe

the realm, the master of the rolls, and the secretaries of state, house of

lorcUi..

* S«e above, p. 381. * See above, p. 445.

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470 Consiituiional History, [chap.

Forms of the But these that sit on the woolsacks have no voice in the house,

house of

lords. but only sit there to answer their knowledge in the law, when

they be asked, if any doubt arise among the lords : the secre-
taries do answer of such letters or things passed in coonci]
whereof they have the custody and knowledge : and this is called
the upper house, whose consent and dissent is griven by each
man severally and by himself, first for himself, and then sever-
ally for so many as he hath letters and proxies ; when it cometh
to the question, saying only Content or Not Content^ without
further reasoning or replying.

Meeting of < In this meantime the knights of the shires and burgesses of

mons. ' parliament, for so they are called that have voice in parliament
and are chosen (as I have said before), to the number betwixt
three and four hundred ^, are called by such as it pleaseth the
prince to appoint, into another great house or chamber, by
name, to which they answer ; and declaring for what shire or
town they answer, then they are willed to choose an able and
discreet man to be as it were the mouth of them all, and to

Choice of speak for and in the name of them, and to present him so
chosen by them to the prince : which done, they coming all with
him to a bar which is at the nether end of the upper house,
there he first praiseth the prince, then maketh his excuse of
inability, and prayeth the prince that he would command the
commons to choose another. The chancellor in the prince's

His admis- name doth so much declare him as able as he did declare him-

BIOIL.

self unable, and thanketh the commons for choosing so wise,
discreet and eloquent a man, and willeth them to go and consult

^ The additions to the representative body made between the time of
Smith and that of Fortescue were in Henry YIII*8 reign the knime process was used as we have

endorsement on the legislative acts was added after the last act of the
session : ' Qua quidem perlecta et ad plenum intellecta eidem per dictum
dominum regem de advisamento et assensu dominocum spiritualium et tem>
porallum ac conmiunitatis in parliamento praedinto existentium, &uctori-
tateque ejusdem parliamenti sequens fiebat responsio " Le roi le veult" ' ;
Lords* Joumab, i. p. The process by which the form 'le roi B'&visera*
acquired the meaning of refusal, may be worked out on the EoUs:
Edward I could say ' rex non habet consilium mntandi oonsuetudinem . . .
nee statuta sua revocanda*; Rot. ParL i. 51 : but he generally gives
reasons. Under Edward II we find 'rex habebit advisamentum ' in a
natural sense, p. 394 : * injusta est,' pp. 393, 408 ; * nihil,* p. 435.
Edward III has ' le roi s^avisera de fiidre Veese a son peuple q*il ponrra
bonement,* ii. 142 ; * soit le roi aviso,* p. 169 ; * le roi s'avisera queax/&c.,
pp. 166, 169; and simply *le roi s'avisera,* p. 172; *oe n'est pas reson-
able,* p. 240; * est noun resonable,* p. 241; 'les seigneurs se aviiteront*
p. 318 ; after the accession of Hiohiud II it seems to have its modem
meaning.

* The Commonwealth of England and manner of govemm^it thereof;
compiled by the honourable Sir Thomas Smith, knight; London, 1585^;
bk. ii. cc. 2, 3. Sir Thomas died in 1577.



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XX.] Judicature of the Lords, 477

here attempted to trace in the practice of legislation ; a bill of Appeals of

attainder went through the same stages as a bill of settlement

or of legal reform. The appeal of treason in parliament, always

an irregular and tumultuous proceeding, was forbidden by the

first parliament of Henry IV ^. The supreme or appellate juris- AppeUato

J. ^. _ , ,,..., . . Ill Jurisdiction

diction of the lords m civil suits is a matter rarely heard of of the lords.

from the time when the complete and matured organisation of
the courts of Westminster had been supplemented by the judicial
activity of the council, until it was revived and reorganised in
the sixteenth and seventeenth centuries '. The practice of trial impeach-
upon impeachment has thus a melancholy prominence in the judi-
cial annals of parliament : and there is no occasion to dwell here
on the details which have been given in our narrative chapters.
The presumptuous boast of the Merciless Parliament in the case oiaim of
of the appellants of 1388, that parliament is bound by none oftUbT^ve
the ordinary rules of law, civil or common ', has not practically ^*
met with acceptance even in the extreme cases in which Straf-
ford, Laud, and Charles I were made to feel that a minute
adherence to forms is a different thing from the observance of
constitutional law. The impeachments as well as the appeals
of medieval times are, as has been already remarked, pregnant
with warning rather than example.

The Rolls of Parliament afford such scanty glimpses of detail Presence of

n« ii.-i . \ ,, *w kings in

in all points except the results of the session, and so seldom parliament.

contain any notice of speeches or debates, that it would not be

safe to argue from their silence that the kings took a very small

share in the deliberative work of the national council. It is

' See above, jp. 23.

* See May, Treatise on Pailiament, p. 53, where the judicial powere of
the house of lords are briefly summed up : They have a judicature in the
trial of peers, and claims of peerage ; a general judicature as a supreme
court of appeal from other courts of justice, inherited from the ancient
* concilium regis.' In the seventeenth century they assumed a jurisdiction
which has since been abandoned, an original jurisdiction in civil suits ;
and the like in criminal cases where there was no impeachment by the
commons. The appellate jurisdiction in equity has been exercised since
the reign of Charles I ; and the jurisdiction in cases brought up by writ
of error, originally derived from the crown, was confirmed by Stat a 7
Eliz. c. 8 ; cf. Coke, 4th Inst. p. ao.

' See above, vol. ii. p. 480 ; Rot. ParL iii. 336 ; cf. Coke, 4th Inst.
Pi5-



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478 Constitutional History. [chap.

The kinK however quite fair to argue from the position usually occupied
at the open- hv the ministers in the formal transaction of business that it

ing of the

parliament, was only on very rare occasions that the king would take part
in deliberation, either as a speaker or as a hearer. His presence
was deemed necessary at the opening and generally at the close
of the session ; but most frequently his duty was discharged
when he had directed the chancellor to state the causes of sum-
mons, and to thank the estates for their attendance. The chan-
cellor was his spokesman in most cases when he approved the
election of the speaker. His decision on petitions was expressed
by an indorsement which the clerk of the parliament read on

He ieldom: the last day of the session as the king's answer. It was very
seldom that he spoke, or was recorded to have spoken ; and
when it is recorded it is with exceptional solemnity. The im-
perfection of the records of the reigns of Edward I and Edward II
makes it impossible to speak positively with regard to them ;
Edward I however had probably learned to guard against the
garrulity which made his feither ridiculous, and Edward 11
seldom cared even to face his subjects. In 1315* we are told
that it was by the king's order that "William Inge opened the
parliament, but even this slight indication is generally sup-
pressed ; and the statement that ' de par le roi ' such and such
ministers spoke cannot be understood to mean that he gave a

Speeches of verbal direction. Under Edward III, whose popular manners
and constant association with his barons make the appearance of
silence still more strange, the same course was observed ; it is in
1363 *, after he has been more than thirty years on the throne,
that we first distinctly find him making his will known to the
oonmions by his own mouth ; they thank him for having done
this in the last parliament, from which we infer that he had
spoken on the occasion of the dissolution. The parliament
of 1362 was that in which the use of English in legal transac-
tions was ordered; that of 1365 was opened with an Engli^
speech, and it may be inferred that in giving the estates leave to
depart Edward himself had spoken in English, and that where in

> Eot. Pari. i. 350. « Ibid. u. 276.

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XX.] Dismissal of Parliament, 479

other cases the address of thanks is not said to have been spoken His parting
by the chancellor, it was spoken by the king. In the last inter-
view which he had with his parliament, at Sheen in 1377, the
parting words are put in his mouth *. The days of serene su-
premacy passed away with Edward III; Richard 11 is more
than once said to have uttered haughty words in parliament.

In 1386 he protested 'par sa bouche demesne' that his prerotra- Speeches of
X- X- • j1 u^kj^i 1 • xu • Eicha«ill.

tive was not impaired by what had taken place m the session ;

in 1388 he had to declare openly in full parliament that he
believed his uncle the duke of Gloucester to be loyal; in 1390
he thanked the lords and commons for their advice and grants.
In 1397, in the discussion on Haxey's bill, he allowed the chan-
cellor to complain on his behalf to the lords, but when that
was done, administered a reproof and stated his determination
in his own words, and in the same way pardoned the commons
when they had made their humble apology. But in this and
the following parliament Eichard played the part of a politician
rather than that of a constitutional sovereign ; he discussed in
a long speech to the commons the foreign policy which he had
adopted, and acted as his own minister ^ In the next session he
spoke several times on the accusation against Arundel, and in
vindication of his own friends, but these utterances were perhaps
judicial : in his last revolutionary session at Shrewsbury he
followed the same course, stating with his own mouth at the
dissolution that he would annul his pardon recently granted
unless the newly voted grants were collected without impedi-
ment'.

The succeeding kings took a still more prominent part in Speeches of
parliament. Henry lY, whose claim to the crown, spoken in
English *, made the occasion an era of constitutional progress,
not only signified his wishes to the parliament, but deigned to
argue with the commons; he laid himself open to the good
advice of the speaker, and condescended on various occasions
both to defend himself and to silence his interlocutor : he soon



» Rot. Pari. ii. 364. » Ibid. iii. 338, 339.

» Ibid, iii 351, 353, 369. * See above, p. n.



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48o



Constitutional History.



[chap.



Eloquence
of Edward
IV.



DiscuMKma learned that hiB dignity would not survive too great familian^,

of Henry IV , , , / , . ^ , , -r . \

with the and had to reprove the loquacity of the speaker. It is one of
the notable features of his policy that he stood, notwithstanding
his difficulties, always face to face with his subjects. The re-
cords of the next reign are too meagre to illustrate this point ;
Henry V seems however to have conversed as freely as his father
had done with the lords, and perhaps maintained his dignity
better. In the minority of his son, the dukes of Gloucester and
Bedford are found stating their own quarrels, notwithstanding
their dignified place of protector and chief counsellor, and the
boy king was very early made to play his part in the formal
solemnities of the session. Edward IV, who imitated the more
popular usages of the rival house, likewise made speeches to both
lords and commons ; and in particular, in dissolving his first par-
liament, addressed the speaker in simple and touching language
of gratitude and promise *. All these speeches were made by the
king either in full parliament, that is, in the presence of both
houses, or in the house of lords to the lords who were then
and there in attendance upon him. It was fully recognised that
for anything like consultation the two houses had a right to the
utmost privacy; the commons had a right to deliberate by them-
selves, and the lords by themselves ; and when they desired to be
private, the king was ill-advised indeed if he listened to any
report of their proceedings other than they presented to him *.
Although, however, a good deal of the business of the lords was
no doubt transacted in the king's presence, medieval history
affords no instance of his visiting the house of commons whilst
they were debating. The question of freedom of debate belongs
to another part of our subject.

445. The right of suspending the session by adjournment or
prorogation, of countermanding a meeting once called, and of
dissolving the parliament itself, was throughout the middle ages
vested in the king alone. The distinction between adjournment
and prorogation, in so far as the one belongs to the houses and

* Rot. Pari. ▼. 487.

* Queen Anne was the last sovereign who attended debates in the house
of loztls ; May, Treatise on Parliament, p. 449.



Privacy of
debate.



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XX.] Prorogation and Adjournment. 481

the other to Ihe crown, is a modem distinction \ The necessary Royal

^ " power of
adjournment from day to day, as well as the countermanding of Adjourning

a parliament called, and the longer intermission of the session, rogumg.
was known as prorogation' : the houses were ordered by the
king to meet from day to day until business was finished,
and the rule of adjourning at midday originated probably as
much in the necessity of dining as in the wish to claim a
privilege'. The countermanding power is proved by numerous
instances : in some cases the king was prevented from attend-
ance at the time fixed, and warned the estates not to assemble ;
in others they met to be prorogued, as in the case of the parlia-
ment of 1454 S and in several formal sessions of the reign of



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 49 of 68)