The term petitioners indeed, has, by some authors, been considered as reproachful to the Commons; but how a petition, as the spring of a law, could have meanness in it, is inconceivable. Even in the free age of Charlemagne, this mode of application was employed. Baluz. capit. reg. Franc. tom. 1. The behaving with reverence to the sovereign is very different from acting with servility. And as to the petitioning against grievances, it is to be remembered, that respectful requisitions of ancient and constitutional privileges, which had suffered invasion, are not to be considered as mean solicitations for acts of favour.
[27] Conf. Cart. an. 25. Ed. I. It is singular, that even after the times of Edward I. some writers will not allow, that the Commons were any essential branch of the legislature; yet the writ of summons expresses in strong terms their right of assent: Ad audiendum et faciendum et consentiendum; and a multitude of examples may be produced of their actually consulting and determining about peace and war and other important matters of state.
There is evidence that Edward I. called a parliament, and consulted with the Lords and Commons about the conquest of Wales; and that on receiving information that the French King intended to invade some of his dominions in France, he summoned a parliament ad tractand. ordinand. et faciend. cum prælatis, proceribus et aliis incolis regni quibuslibet, hujusmodi periculis et excogitatis malis sit objurand. Inserting in the writ these memorable words, Lex justissima, provida circumspectione stabilita: Quod omnes tangit, ab omnibus approbetur.
Edward II. consulted with his people in his first year pro solemnitate sponsalium et coronationis; and in his sixth year he consulted them, super diversis negotiis statum regni et expeditionem guerrae Scotiae specialiter tangentibus[A].
Edward III. summoned the peers and Commons in his first year to consult them, Whether they would resolve on peace or war with the Scottish king. In his sixth year, he assembled the lords and Commons, and required their advice, Whether he should undertake an expedition to the Holy Land. The lords and Commons consulted accordingly; and while they applauded his religious and princely forwardness to the holy enterprize, advised a delay of it for that season. In his thirteenth year, the parliament assembled avisamento prælatorum, procerum, necnon communitatis to advise de expeditione guerrae in partibus transmarinis; and ordinances were made for provision of ships, arraying of men for the marches, and defence of the isle of Jersey. In his fortieth year, the Pope demanding the tribute of king John, the parliament assembled, where, after consultation apart, the prelates, lords and Commons advise the refusal of it, although it be by the dint of the sword.
Richard II. in the first year of his reign, advised with the peers and Commons, How he should best resist his enemies? In the second year, he consulted his people how to withstand the Scots; who had combined against him with France. In the sixth year, he consulted the parliament about the defence of the borders; his possessions beyond sea, Ireland and Gascoyne, his subjects in Portugal, and safe keeping of the seas; and whether he should proceed by treaty or alliance, or the duke of Lancaster by force? The lords approved the duke’s intention for Portugal; and the Commons advised, that Thomas bishop of Norwich, having the Pope’s croiceris, should invade France. In his fourteenth year, this prince advised with the lords and Commons for the war with Scotland, and would not, without their counsels, conclude a final peace with France. And the year ensuing the Commons interested the king to use moderation in the law of provisions, and proposed that the duke of Aquitaine should be employed to negotiate the peace with France.
With regard to the power of the Commons as to judicature in the times of which we speak, there are not wanting decisive proofs. In the reign of Edward II. the peers and Commons gave consent and judgment to the revocation and reversement of the sentence of banishment of the two Spencers[B]. In the first year of Edward III. when Elizabeth the widow of Sir John de Burgo complained in parliament, that Hugh Spencer the younger, Robert Baldock and William Cliffe his instruments, had by duress forced her to make a writing to the king, in consequence of which she was despoiled of her inheritance, sentence was given for her by the prelates, lords and Commons. In the 4th year of Edward III. it appears by a letter to the pope, that to the sentence given against the earl of Kent, the Commons were parties as well as the peers, for the king directed their proceedings in these words: Comitibus, magnatibus, baronibus, et aliis de communitate dicti regni ad parliamentum illud congregatis injunximus, ut super his discernerent et judicarent quod rationi et justiciæ conveniret. When in the first year of Richard II. William Weston and John Jennings were arraigned in parliament for surrendering certain forts to the king; the Commons were parties to the sentence against them, as appears from a writing annexed to the record. In the first year of Henry IV. although the Commons refer by protestation, the pronouncing the sentence of deposition against King Richard II. to the lords, yet they were equally interested in it, as is evident from the record; for there were made proctors or commissioners for the whole parliament, one bishop, one earl, one abbot, one baronet, and two knights. “And to infer, says a learned and accurate author[C], that because the lords pronounced the sentence, the point of judgment should be only theirs, were as absurd as to conclude that no authority was left in any other commissioner of oyer and terminer than in the person of that man solely that speaketh the sentence.” In the second year of Henry V. the petition of the Commons imported no less than a right to act and assent to all things in parliament; and the king allowed that they possessed this right.
These examples of the importance of the people are striking; and they are supported by the authority of the parliament-rolls, or by records above exception. The curious reader may see them, and other proofs to the same purpose, in the posthumous pieces of Sir Robert Cotton.
[A] In his history of this prince, Mr Hume has the following very strange assertion: “The Commons, though now an estate in parliament, were yet of so little consideration, that their assent was never demanded.” Vol. II. p. 139.
[B] The share the Commons had in this act, Sir Robert Cotton authenticates from the parliament rolls. Cottoni posthuma, p. 348. Yet Mr Hume, in the most positive terms, denies that the Commons had any concern in it. Vol. 2. p. 140.