HOUSE OF COMMONS.
A considerable number of treatises were written in the middle and latter end of the seventeenth century, and a few in the beginning of the eighteenth, respecting the period at which the House of Commons asserted that independence which it is so material to the security and happiness of the country it should possess, and obtained that share in the legislature it nowenjoys; but the writers on both sides,[35]eager in the maintenance of the cause they espoused, andtaking advantage of the scanty means the public had of knowing what was contained in the early Rolls of Parliament[36]and other ancient records, suppressed from partiality and interested zeal, much of the information themselves possessed, which rendered of little use to the public an inquiry that might otherwise have been attended with considerable advantage.
It might be supposed indeed, that when men so remarkable for diligence and learning, as Prynne and Petyt, (who were both keepers of the records in the Tower, among which are most of the Rolls of Parliament, and all the Claus Rolls) took opposite sides of the controversy, about thetime when the Commons first formed a part of the legislature, whatever could have made for or against either side of the question would have been produced. And yet with all their opportunities and their eagerness for research, those who have attentively looked through the Rolls of Parliament, will find amongst them much matter of importance respecting the questions those writers discussed at different periods, to which neither of them referred, either in support of his own, or in contradiction to his opponent’s argument. Rymer was equally zealous in supporting the side he took, in the beginning of the last century. Any thing therefore having been brought to light by the publication of the Rolls of Parliament, which appears to have escaped the industry and research of such men, is a strong proof of the utility of printing those valuable documents.
As early as the46thof Edward the third, a statute was made, ordaining that all persons should be entitled to search for, and have exemplifications of records, as well such as proved contrary to the interest of the king, as such as were favourable to it.
Great and eminent men, however, not more distinguished by their high stations, than for their talents and research, stated opinions, some on points of magnitude, in the pursuit of mere legal investigations, different from those which areprobably entertained by such as have carefully perused the Parliamentary Records, which were printed during the reign of his late Majesty.
In corroboration of this assertion, it may be sufficient to mention two opinions of Lord Coke’s.
The first that the Lords and Commons sat together late in the reign of king Edward the third[37]and until the Commons had a perpetual Speaker. The direct contrary of this opinion it is thought is evident from the Rolls of Parliament. It does not appear from any Records that the two Houses ever sat for deliberation in the same assembly, from the time the Commons were regularly summoned in their representative capacity to Parliament.
On the contrary, so early as the18thof Edward the first,[38](Rolls of Par.vol.1.p.25,a.the earliest Roll extant) there is a Grant[39]to the king for the marriage of his eldest daughter, by several Peers named,“et cæteri Magnates et Proceres tunc in Parliamento existentes, pro se et Communitate totius Regni Angliæ quantum in ipsis est;”that is, “and other Lords and Nobles for themselves and the Community ofthe whole kingdom of England, as much as they were able.” In the19thof Edward the second (p.351.a.) there is a grant to the king for carrying on the war with Scotland, by the Citizens, Burgesses, and Knights for counties, of a fifteenth of the moveables of the Citizens, Burgesses, and men of the counties, cities, and towns.
In the14thof Edward the second (p.371.) complaint was made by the Knights, Citizens and Burgesses of felonies for which they besought a remedy: and the Record concludes“Et Concordatum est per Dominum Regem de Consilio Prelatorum, Comitum, Baronum, et aliorum Peritorum, in dicto Parliamento existentium quod,”&c. that is, “and it was agreed between our Lord the king and the council of Prelates, Earls, Barons, and other great men in the said Parliament assembled, &c.”
The Entries in the sixth of Edward the third, 1331, (to the Parliament Rolls of which year Lord Coke particularly refers for proof of the Lords and Commons then sitting together) which appear to bear on the point in question, are invol.ii.p.66. At the first meeting at Westminster, the Prelates by themselves, and the Knights for counties by themselves, deliberated on the business opened to them at the beginning of the Parliament, and answered by advising the king not to go in person to Ireland to quell the rebellion there.And in the third meeting in that year at York, when a statement was made by Geoffrey le Scroop, in the presence of the king, and “de touz les Grantz en plein Parlement,” of all the Lords in full Parliament; and afterwards it was agreed by the king and the whole in full Parliament, that certain Bishops and Peers named, should meet on the business in discussion by themselves, the other Prelates, Earls and Barons, and the Proxies by themselves; and the Knights of the shire and Commons by themselves. The business was discussed accordingly during some days; after which the Commons had leave to return to their counties, and the Prelates, Earls, and Barons, were to remain till the day following.
In the13thof Edward the third (vol.2.p.104.) a grant was made to the king, “par les Grantz,” of a tenth of the grain of their demesne lands, and of their fleeces, with certain reservations. The Commons, however, after representing their having heard the statement of the king’s necessities, the extent of which they were aware of, and were willing to relieve as they had always done; said, that as the aid must be a great one they dared not assent to it without consulting with “les Communes de leur Pais,” the Commons of their counties. And they desired another Parliament to be summoned. At which subsequent meeting, in the same year, (p.107.b.) the occasion of summoning the Parliamentwas explained to the Commons, on which they said they would deliberate. They afterwards proposed to grant 30,000 sacks of wool on certain conditions, which if not agreed to by the king, the aid was to be withheld. The Earls and Barons the same day granted for themselves and the Peers of the land who held by Barony, the tenth sheaf, the tenth fleece, and the tenth lamb.
In the14thof Edward the third, (p.112,a.) grants were made by the Prelates, Earls, and Barons, for themselves and all their tenants, and by the Knights of shires for themselves, and for the commons of the land, of the ninth sheaf, the ninth fleece, and the ninth lamb; and by the Citizens and Burgesses of a real ninth of their property; and merchants not inhabiting cities and towns, and other people who reside in forests and wastes, and who do not live by their gains or their flocks, a fifteenth of all their property according to the true value.
In the15thof Edward the third (p.127,a.) on occasion of a Grant made to the king in a former Parliament, to enable him to purchase friends and allies for the recovery of his rights, having not been as available as it ought to have been, it was proposed that consideration should be had, “par touz les Grantz et Communes,” “by all the Lords and Commons,” how the grant should be made most profitable to the king, and least burthensome to the people, “les Grantz depar eux, et les Chivalers des Counteez, Citeyens, et Burgeys de par eux,” that is, “the Lords by themselves, and the Knights for counties, Citizens and Burgesses by themselves.”
In the17thof Edward the third, (p.136,a.) “les ditz Prelatz et Grantz assemblez en la Chambre Blanche (the court of requests) responderent,” &c. (p.136, 6.) “Et pour vindrent les Chivalers des Counteez et les Communes et responderent par Monsieur William Trussell en la dite Chambre Blanche qi’ en Presence de nostre Signeur le Roi et les ditz Prelates,” &c. that is, “on which day the said Prelates and Lords assembled in theChambre Blanche, answered,” &c. “And then came the Knights for counties, and the Commons, and answered by Monsieur William Trussell in the saidChambre Blanche, and in the presence of our Lord the king, and the said Prelates,” &c.
There can be little doubt but that this William Trussell was Speaker of the House of Commons. He is styled by Higden, who wrote in the reign of Edward the third, in his “Polychronicon,” “Procurator of the Parliament,” when he, in the name of all the men in the land of England, renounced allegiance to king Edward the second, in the last year of that king’s reign.
The Speaker of the Commons was indeed styled “Parlour and Procurator,” so late as the first of Henry the fourth. (Rolls of Parl.vol.3.p.424,b.)
In the18thof Edward the third, when the king was going-to France for the recovery of his rights, the grants by the Lords and Commons were quite distinct; the former to accompany him in the war, “les ditz grantz granterent de passer et lour aventurer ovesque lui;” the Commons granted, for the same cause, two fifteenths of the commonalty, and two tenths of the cities and boroughs. (Rolls of Parl.vol.2.p.150,b.)
There are other grants in this reign by the Commons;20thof Edward the third, (p.159,b.) and21stof Edward the third, (p.166.) In the22dof Edward the third, (p.200.) the Commons grant an aid, after several days consideration, but under certain conditions. In the29thof Edward the third, (p.265,b.) there is a separate grant by the Commons.
In the40thof Edward the third, after the occasion of summoning the Parliament had been explained, the Lords and Commons were directed to depart, and to meet again on the day following, the Lords “en la Chambre Blanche,” and the Commons in the painted Chamber. (Vol.2.p.289.)
In the42dof Edward the third (p.227,a.) a Petition of the Commons, and the answers thereto, were read in the Court of Requests, in the presence of the King, Lords, and Commons; and a statement was made to the king in this Parliament“par les Grantz et Communes,” by the Lords and Commons, all the former and many of the latter having dined with the king; after which John de la Lee was put on his defence before them in the said place.
In the50thof Edward the third, (p.283.) the Commons profess the utmost loyalty and goodwill to the king; but add, that if he had faithful ministers about him, he must be rich enough to do without subsidies, especially considering the sums of money brought into the kingdom by the ransoms of the king of France, the king of Scotland, &c. They then proceed to the impeachment of a considerable number of persons.
And in the51stof Edward the third, (p.363.) on the opening of the Parliament, the Commons were directed by the king to retire to their ancient place of meeting, in the Chapter House of the abbey of Westminster. To this record Lord Coke himself refers.
It will be seen in the notep.146, that Sir Thomas Hungerford is mentioned as Speaker of the House of Commons; and in the first of Richard the second, that Peter de la Mare was Speaker of the Commons.
The second opinion of Lord Coke’s to which allusion has already been made, is, that if an act mentions only that the king enacts, and the Lords assent, without naming the Commons, the omissioncannot be supplied by any intendment. Lord Coke expressly says, if an act be penned, that “the king with the assent of the Lords,” or “with the assent of the Commons,” it is no act of Parliament, for three ought to assent to it, the King, the Lords, and the Commons; or otherwise it is not an act of Parliament; and by the record of the act it is expressed which of them gave their assent; and that excludes all other intendments that any other gave their assent. (Lord Coke,8thReport,p.20,b.)
How dangerous it would be to decide on the validity of our statutes, on such ground, will be seen by a single instance.
The act of the first of Edward the sixth against exporting horses without a licence, after the recital in the preamble, runs thus; “For remedy whereof, be it therefore enacted by our sovereign lord the king, and by the Commons in this present Parliament assembled, and by the authority of the same,”—the Lords being not once mentioned in the statute, which is accurately printed from the original act.
Now it appears by the Lords’ Journals, (vol.1.p.303,a,) that this act had not only the assent of the House of Lords, but that it had its origin in that House, where it passed unanimously, (p.306,a.) was returned from the Commons with a proviso, which was agreed to by the Lords, (p.312,a.) and is in the Journals among the acts passed that session. (p.313,a.)
There has not been found in the Records, the slightest foundation for an opinion, that there was any election of representatives of the Commons earlier than the49thof Henry the third, 1265, except in the entry respecting the borough ofSt.Alban’s, so often referred to by different writers. It is, however, certain that those who heldin capiteof the king, were a necessary part of the great council, as early as king John’s time, when aids and escuage were to be granted to the sovereign.
In the52dof Henry the third, 1268, a parliament, or more properly a great council, of Barons only, was held at Marlborough, where the great charter was confirmed. The members of this parliament or council were such of the great Barons and Tenantsin capite, as the king pleased to summon thereto.
King Edward the first, at Easter, 1276, held a parliament at Westminster, of Archbishops, Bishops, Abbots, Priors, Earls, Barons, andCommons, wherein many excellent laws were made, called the Statutes of Westminster the first. It is proper to mention that theCommonshere spoken of, were not Knights of shires, or Burgesses, but the smaller Tenants who held in chief of the king, or Tenantsin capite.
It is generally said by our Historians, that the first time that any Citizens, or Burgesses were summoned to parliament by the king’s authority, was in the 23d year of king Edward the first,1294, but the editors of the Parliamentary History (vol.1.p.87,) have shewn that the same king, in the eleventh year of his reign, 1283, called a parliament to be holden at Shrewsbury, on occasion of taking prisoner, David, brother of Llewellyn, prince of Wales, the latter having lately been killed in battle.
The king in summoning this Parliament was more explicit than he had ever been before. The writs of summons are still extant. The first is directed to the Barons to meet the king at Shrewsbury, on the30thof September. The second writ is directed to the sheriffs of every county in England, to cause to be chosen two Knights for the commonalty of the county, as also a third directed to the several cities and boroughs mentioned, and a fourth writ to the Judges.
Mr. Tyrrell observes, that “neither Prynne nor Dr. Brady, with all their diligence, have taken any notice of these writs to summon this Parliament.
“The writs were directed to all the Earls and Barons by name, to the number of 110; but the writs to the cities and boroughs are more remarkable, especially as they are the first upon record, requiring the attendance of the Knights of the shire, Citizens, and Burgesses, except those issued in the name of the late king Henry the third.”
The cities and boroughs to which these writs were directed were the following:—Bristol, Canterbury, Carlisle, Colchester, Chester, Exeter, Grimsby, Hereford, Lynn, Lincoln, Newcastle (Tyne,) Norwich, Northampton, Nottingham, Scarborough, Shrewsbury, Winchester, Worcester, Yarmouth, (Norfolk) and York.
In the23dof Edward the third, 1294, a Parliament was summoned to meet at Westminster, and writs were sent to the several sheriffs of England to cause to be elected two Knights for each county, two Citizens for each city, and two Burgesses for each borough, to be at the said Parliament, to consent and agree to such things, as the Earls, Barons, and Peers of the Realm should ordain; and from this year is to be dated the first regular general summons of Knights, Citizens, and Burgesses to Parliament. It is proper to observe that in this Parliament, the Earls, Barons, and Knights of the several counties, sat, treated, and consulted altogether, and gave the king an eleventh part of all their moveable goods; the Citizens and Burgesses acted separately, and granted a seventh part of all their moveables.
In the more early period of the history of the House of Commons, when the Parliament frequently sat only for a single day, the whole business being to grant the king a subsidy, it isprobable that the Speaker might with more propriety be called the chairman, for sometimes one of the members was appointed to the chair, and sometimes another; some resolutions were ordered to be made by one member, and others to be reported by another.
In the19thof Edward the second, 1325, William Trussell was in the chair, when Hugh Spenser the younger was accused of Treason, in Parliament.
In the6thof Edward the First, the Commons made answer to the king by Sir Geoffrey le Scroop, and it was agreed by the king, and the whole in full Parliament, that certain Bishops and Peers named, should meet on the business in discussion by themselves; the other Prelates, Earls, and Barons, and the Proxies[40]by themselves; and the Knights of theshires and Commons by themselves. In the fifty first of the same king Sir Thomas Hungerfore was Speaker of the Commons.
In the first of Richard the Second, 1377, Sir Peter de la Mare, knight of the shire for the county of Hereford, was Speaker of the Commons, as he had been in the last Parliament but one of Edward the Third. In the fifth of the former king, 1382, Sir Richard Waldegrave was chosen by the Commons to be their Speaker, who made an excuse, and desired to be discharged. He is the first Speaker that appears upon record to have made an excuse, but the king commanded him, upon his allegiance, to accept the office, seeing he had been chosen by the Commons.
In the fifth of Henry the fourth, 1404, Sir Arnold Savage being chosen Speaker, after making an excuse, requested the king, in the name of the Commons, that they might freely make complaint of any thing amiss in the government,and that the king would not by the sinister information of any person take offence at that of which they should complain, which petition was granted by the king.
In the seventh year of the same king, 1406, Sir John Tiptoft being chosen Speaker, made an excuse on account of his youth, which not being accepted, he requested that if any writing was delivered by the Commons, and they should desire to have it again, to amend or alter any thing therein, it might be restored to them, which was granted. Whilst he was Speaker, he signed and sealed in the name of the Commons the deed which entailed the crown upon Henry the fourth. ThisyoungSpeaker is said to have taken more upon him, and to have spoken more boldly and freely to the King and the Lords, than any before him, insomuch that his example being followed, the king gave a check to it, when Thomas Chaucer,Esq.was chosen Speaker in his room.
In the20thof Henry the sixth, 1450, the Commons presented Sir John Popham to the king as their Speaker, who making an excuse, it was received, and he was discharged, on which the Commons presented William Tresham, who had twice before been Speaker, who was accepted.
In the31stof the same king, 1453, Thomas Thorpe,Esq.Speaker of the House of Commons was arrested in execution at the suit of theDuke of York during the vacation between two sessions, and the opinion of the judges being demanded by the Lords, they refused to judge of the liberties of Parliament as not belonging to their jurisdiction, whereupon the Lords without their advice adjudged that the Speaker was not entitled to any privilege, which, on being-signified to the Commons, and also the king’s pleasure being made known to them that they should choose another Speaker, they chose Sir Thomas Charleton.
In the15thof Henry the eighth, 1523, Sir Thomas More, Chancellor of the Duchy of Lancaster, was chosen Speaker of the House of Commons. He made the usual protestation for himself, and prayed that if any member should in debate speak more largely than he ought, that he might be pardoned by the king, which was granted.
In the first year of queen Elizabeth, 1559, Sir Thomas Gargrave was chosen Speaker; in his speech to the queen he made four requests, namely first, free access to her majesty; secondly, for liberty of speech; thirdly, privilege from arrests; and fourthly, that his mistakes might not prejudice the house.
In Scotland the system of representation was not adopted till the reign of James the first, of that kingdom, in 1427. By an act of that year it was enacted, that “the king with consent of thewhole council generally has statute and ordained that the small Barons and free Tenants need not to come to Parliaments nor general councils, so that of each sheriffdom there be sent, chosen at the head court of the sheriffdom, two or more wise men after the largeness of the sheriffdom, &c.”—Scottish Acts printed in 1682,p.30.
In Scotland the Lords and Commons unquestionably sat in the same House till the Union of the two kingdoms, and the Commissioner who represented the sovereign, debated with them from the throne, although he had the power, which he sometimes used, of adjourning the assembly when he pleased.