Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/342

Rh 322 ENGLAND Relations of Lords and Com mons. Petition ing power of the Com mons. Judicial powers of parlia ment. Position of the Lords. parliamentary estate came to nothing, parliament now definitely took its modern form of an assembly of two houses, Lords and Commons. A statute of Edward II. in 1322 distinctly asserted the right of the Commons to a share in all acts which touched the general welfare of the kingdom. But a distinction was for a long time drawn between the older and the newer element in the assembly. For a long time the doctrine was that the Commons petitioned, and that their petitions were granted by the king with the assent of the Lords. This position of the Commons as a petitioning body is of the deepest importance, and looks both forwards and backwards. Looking backwards, it was an almost necessary result of the way in which parliament had grown up. The Lords were, and the Com mons were not, representatives by direct succession of the ancient sovereign assemblies of the land. It was for them by immemorial right to advise the king and to consent to his acts. The Commons had been called into being along side of them; they had no such traditional powers; they could win them only step by step. Looking forwards, the position of the Commons as a petitioning body was a source of immediate weakness and of final strength. For a while they simply petitioned ; not only might their petitions be refused, but, if they were granted, they had no control over the shape in which they were granted. If the king granted a petition which involved any change in the law, it was by royal officers that the petition was put into the form of a statute after the representatives of the Commons had gone back to their homes. Such a practice gave oppor tunity for many tricks. It was a frequent subject of com plaint that the petitions which were said to be granted, and the statutes which were enacted in answer to them, were something quite different from what the Commons had really asked for. This evil was first seriously checked in the reign of Henry VI., when the practice was established which still prevails, that of bringing in, instead of a mere petition, a bill drawn in the form which the proposed statute was intended to take. Again, as long as the Com mons were mere petitioners at whose request a law was enacted, it might be held that the king was equally able to enact at the request of some other petitioning body. Thus we still find statutes sometimes enacted, without the petition of the Commons, sometimes, for instance, at the petition of the clergy. So again, this same position of the Commons as a petitioning body led to one distinction between them and the Lords which has gone on to our own times. In one chief function of tlie ancient assemblies the Commons never obtained a direct share. Parliament, like those ancient assemblies, has always been the highest court of justice. But its strictly judicial powers have always been exercised by the Lords only. The Commons, by virtue of their petitioning power, have become denouncers and accusers ; but they have never become judges. By virtue of their petitioning power, they began, as early as the reign of Edward III., to denounce the ministers of the king, and to demand their dismissal. In the Good Parliament of 1376, and again in the parliament of Richard ten years later, this power grows into a regular impeachment of the offenders, which is brought by the Commons as accusers before the Lords as judges. Whenever the Commons have taken part in action which was practically judicial, it has always been under some other form. They have exercised a somewhat arbitrary and anomalous authority in defence of their own privileges. They have passed bills of attainder and bills of pains and penalties ; but these take the form of legislative acts. Strictly judicial functions like those of the Lords they have never claimed. One effect of the growth of the Commons was to give a more definite position to the Lords. As long as there was only one body, and that a fluctuating body, membership of the assembly could not be looked on as conferring any definite status. None but the bishops and earls had any undoubted personal claim. Some abbots, some barons, were always summoned; but for a long time they were not always the same abbots or the same barons, and the memory of the old right of attendance on the part of the whole free population had not altogether died away. So long as this state of things lasted, no definite line could be drawn between those who were members of the assembly and those who were not. It was only when a new body arose by the side of the old one, a body which confessedly repre sented all persons who had no place in the eider body, that membership of the elder body became a definite personal privilege. The vague and fluctuating gathering of the great Natv men of the realm now grew into a peerage of known the ] members, and possessing defined rights. The very change age- which made the Lords, as we may now call them, sharers in their powers in every way raised the position of the Lords as a class. The peerage, with its several ranks and its de fined privileges, grew up in the reigns from Edward III. to Henry VI. It was gradually established that the king s writ of summons, by which he called this or that man to give his attendance in parliament, conveyed a perpetual right, not only to himself but to his heirs. And now that the peerage has taken this more definite character, we hear of new and more solemn ways of admission to its ranks, such as creations in parliament and by letters patent. New Nev titles of peerage of foreign origin were devised. Edward of r III. first created dukes, beginning with his own sons. The age- duchy of Cornwall has ever since belonged of right to the eldest son of the sovereign. Under Richard dukes became more common ; under him too the title of marckio or marquess, properly the lord or guardian of a march or frontier, came to denote another honorary rank of peerage. Under Henry VI. another new rank of peerage first appears, that of vicecomes or viscount, a word which had hitherto meant the sheriff of a county, All these new titles were, as titles, purely honorary ; they expressed mere rank, with no rights or duties but such as were common to the whole peerage. The creation of these new titles completed the change in the position of the earls, about whom some trace of their original official character long hung. The earldom now became a mere rank in the peerage, like any other. The new dukes and marquesses were set above the earls, while the viscounts were thrust in between the earls and the barons. But both the old titles and the new kept the same position as ranks in an official peerage, in a body of legislators and judges, the temporal portion of which held their seats by genealogical succession. 1 But no nobility in the foreign sense was, or could be, created. Because the CM. peer was raised above other men as hereditary legislator f I and hereditary judge, therefore his children remained, like com other men, members of the general body of the Commons. As the growth of the Commons at once raised and defined The I the position of the Lords, so the general growth of the power kmi I of parliament at once denned, and by defining strengthened, P rei f the king s prerogative. It now became a question what fine L acts were lawful to the king without the consent of parlia- strep ment, and what acts needed that consent. It is clear that, ene&amp;lt;| 1 &quot; Genealogical succession,&quot; because the phrase &quot;hereditary suc cession is, in the older use of the word, applicable aliketo the spiritual and the temporal peers, at least as both classes stood till the union with Scotland. In older language &quot;jus hereditarium &quot; means a right handed on from one holder to another, whether the successor be the son of the last holder, or a person chosen .or appointed to succeed him after his death. In this sense, the seats attached to the sees of Canterbury, York, London, Durham, and Winchester, are still as strictly hereditary as any earldom or barony. But that name cannot apply to various modern forms of peerage, such as the elective peers of Scotland and Ireland, to the rotatory bishops of Ireland now abolished, to those bishops of England who succeed only by seniority, or to the last newly created judicial peerages.