of the kingdom as a matter of mere fiscal expediency, how they coalesced in the formation of the lower house, and how that house gradually won the right to participate in taxation and legislation, to impeach the ministers, to participate in the general control of the royal administration, and in the deposition of the king himself, has been drawn out already. In the parliament thus reconstructed the commons soon ceased to be mere auxiliaries of the baronial body: they became the more active and aggressive force in the new combination.1 substantive parliament of the four tury. By the end of the fourteenth century the parliament as an The five assembly of estates had won for itself the possession of five rights pos substantive rights which embraced all of the higher functions sessed by of government: I. The exclusive right to authorize both di- at the close rect and indirect taxation; and as an incident thereto the teenth cencommons claimed the right to make the grant of supplies dependent upon the redress of grievances. 2. The right to concur in the enactment, amendment, and repeal of all permanent acts of national legislation. 3. The right to supervise and control the royal administration; and as incidents thereto (a) the right to appropriate the supplies to special purposes, (b) and to audit the accounts which explained the method of their expenditure. 4. The right to impeach and punish the ministers. 5. And finally the right to depose the king himself, and to vest the succession in another member of the royal house more competent to govern. subtraction And yet, when a summing up is made of the results of the Neither two processes of subtraction through which the bulk of the process of judicial business was transferred from the king and council exhaustive. to the great courts of law and equity on the one hand, and the virtual control of the legislative, taxative, and fiscal business of the kingdom to the parliament on the other, the important fact remains that neither process was exhaustive. After the jurisdictions of the four great courts at Westminster had been fully and finally established, an undefined re- An undeserve of judicial power still remained to the king in council, serve of a reserve out of which at a later day grew the court of star chamber, a reserve which has reached our own time the form of the judicial committee of the privy council. In the same way, and about to the same extent, the parliament, council. 1 See above, pp. 482-504. fined re both judicial and leg. in islative power re mains to the king in in its effort to draw to itself the exclusive control of taxation and legislation, stopped short of complete victory. After persistent warfare, the assembly of estates finally extinguished, it is true, the taxative power of the king in council. But the effort made by parliament to win the exclusive control of legislation was less conclusive. At the end of the struggle there still remained in the hands of the king in council an undefined reserve of legislative power which was for a long time exercised in the making and revoking of a class of temA definition porary enactments known as ordinances. When to the inherof the pre-ent right of the crown to conduct the executive business of rogative. the kingdom are added the personal privileges incident to kingship, and the two remnants of judicial and legislative power which remain to the king in council after the full development of the law courts and the parliament, the sum thus made up represents the aggregate of royal authority generally known in medieval and modern times as the prerogative. 2. By the end of the fourteenth century all of the substantive powers of parliament had reached their full growth. privileges During the fifteenth, no new powers are added. Nothing in fact transpires in the history of parliament during the latter period more important than the settlement of its principal forms of procedure, and the assertion and definition of privileges1 which belong either to the parliament as a whole, or to the respective houses of which it is composed, or to its individual members. Definition of parliamentary the work of the fifteenth century. Privileges belonging to parlia ment as a whole : modern Chief among the privileges belonging to parliament as a whole, which received final definition during the fifteenth century, was that which involved the form in which the esorigin of the states should concur with the king in the enactment of legisform of leg- lation. After the principle was settled that the concurrence of both houses in legislation was necessary, the common form of legislating throughout the fourteenth century was that initiated by the petitions of the commons, to which the king islation. 1 "During this epoch, the parliament gained none of those signal victories which distinguished the reigns of Edward III. and Richard II.; no really new right, no fundamental and previously unknown guarantee, were added to those already possessed. . . . The internal constitution of the parliament, especially during the course of this period, made important progress; from this time we may date, with some degree of accuracy, its principal forms of procedure, and its most essential privileges."-Guizot, Hist. Rep. Govern ment, pp. 509, 510 (Scoble's trans.). was expected to reply during the session of parliament. When the answer came it was entered, together with the petition, in the parliament rolls, and out of the two, after the adjournment, the act itself was drawn and entered in the statute rolls. The manifold abuses and uncertainties which grew out of this loose and unguarded system have been explained already. To remedy the evils which grew out of this uncertain method of "extracting of the statute out of the petition and answer, about the latter end of Henry VI. and beginning of Edward IV. they (the commons) took a course to reduce them, even in the first instance, into the full and complete forms of acts of parliament." After the passage of bills thus introduced in the lower house, they were sent to the lords, and if passed there they were presented to the king for approval or rejection without alteration. The new method Bills may of legislation thus inaugurated by the commons was soon either adopted by the lords; and in time it became the settled law house, excepting of parliament that, with the exception of money bills, which money bills, must originate with the commons, and bills touching the touching peerage, which must originate with the lords, all bills upon other subjects may originate in either house.2 originate in and bills the peerage. to the two In considering the privileges which belong to each house Privileges as a constituent part of the high court of parliament, the belonging fact must be remembered that, although each house exercises houses separately, all its own privileges and usages independently of the other, they depend are enjoyed, not by any separate right peculiar to each, but upon a sinsolely by virtue of the law and custom which appertains to parliament as a single body. "As every court of justice. hath laws and customs for its direction, - some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament hath also its own peculiar law, called the lex et consuetudo parliamenti."3 All parliamentary privileges rest upon the ancient law and custom of parliament considered simply as a part of the unwritten law of the land, or upon that law and custom as 1 Hale, Hist. Com. Law, vol. i. p. 18. See, also, Ruffhead's Statutes, preface. 2 As to the ancient mode of enacting laws, and the transition therefrom to the modern system, see Sir T. Erskine May, Parl. Practice, ch. xviii. 8 Coke, 4 Inst., 15. "Each house, as a constituent part of parliament, ex- gle code. Privileges of the lords: dience. chancellor. defined by statute. It has been said that the lords enjoy the privileges possessed by them simply because "they have place and voice in parliament."1 An enumeration of the most important of these privileges will do much to point out not only the difference in the usage of the two houses, but also the difference in the privileges possessed by the individual members of the house of lords, as compared with the privileges possessed by the individual members of the house of commons. Foremost among the privileges possessed by the lords should be noted the right of each individual peer, as an right of au- hereditary counsellor of the crown, to have audience with his sovereign. As the corporate successor of the great council, the upper house possessed from the beginning the right to give counsel; and only by personal access to the sovereign Presidency could that right be rendered efficacious.2 By reason no of the lord doubt of this close relation, the presidency of the upper house became vested in the officer most closely connected with the crown, the lord chancellor, or lord keeper of the great seal, who is prolocutor or speaker of the house of lords by prescription, although not necessarily a member of that body.3 When a member he is invested with no more authority than any other peer; when he is not, his office is limited to the putting of questions, and other merely formal proceedings. All speeches are addressed, not to him, but to the whole house. From the earliest times down to a very recent date, when the peers by a standing order voluntarily abolished it,5 every lord possessed the right to appoint another lord of parliament as his proxy to cast his vote, a right originally exercised by virtue of a royal license which was seldom Right to be refused. Every peer possesses not only the right to be tried peers, and by his peers, but also immunity from arrest, not merely as a from arrest. member of the house of lords, but as a baron of the realm, Right to vote by proxy. tried by freedom an immunity which is not limited to the session of parliament, for the person of a peer is "forever sacred and inviolable." 8 1 Hakewell, p. 82. 2 See Diary and Correspondence of May, Parl. Practice, pp. 243-246. ies, on a division, shall be discontinued." 6 For a list of the occasions upon which the permission to appoint proxies was withheld, see Elsynge, Ancient Method of holding Parliaments, p. 117. 7 See above, p. 389, and note 1. 8 Stubbs, Const. Hist., vol. iii. p. 498. commons. Although each house is equally entitled to its own peculiar Privileges privileges under the same code of parliamentary law, the of the term "privileges of parliament" is generally understood to relate more particularly to those which were won by the lower house during the period in which the united representatives of the commons were striving to win recognition as a coördinate factor in the assembly of estates. From the cus Right to elect a speaker. tom upon the part of the commons of submitting their priv ileges to the crown for confirmation, it would appear that such privileges were at first mere matters of royal favor. "But whatever may have been the origin and cause of this custom, and however great the concession to the crown may appear, the privileges of the commons are nevertheless independent of the crown, and are enjoyed irrespective of their petition."1 First among the privileges established by the representative members was the right to organize as an independent corporate body and to elect a speaker. As early as 1376 the lower house formally completed its organization as a deliberative body by the election of Peter de la Mare as head officer, but the title of speaker was not then assigned him. In the next year the parliament rolls contain the first mention of a speaker of the house of commons expressly named as such: "Monsieur Thomas de Hungerford, chivaler qi avoit les paroles pur les commons d'Engleterre en cest parlement." From that year the list of speakers is complete. The choice of a speaker was made by the commons under a command from the crown usually expressed at the close of the opening speech. After the election the speaker-elect His dewas presented by the commons to the king as their chosen rights and "parlour et procuratour." After the speaker had expressed privileges his insufficiency for so great an office, it was usual for the house. crown to approve and confirm him as a speaker. After his confirmation it became his duty to claim of the crown, on behalf of the commons, all of their ancient and undoubted rights and privileges, and at the same time to request that his utterances might be considered as their utterances, that no offence should be taken at his words, and that all his shortcomings should be equitably considered. The usage has 1 May, Parl. Practice, pp. 69–71. 2 See above, p. 480. 8 Rot. Parl., ii. p. 374. mand of the of the |