Law-making was one of the prime functions of parliaments. Before the accession of James I, the future of parliamentary law-making seemed secure. However, in the following chapter it will be shown that this future, already called into question by James’s inappropriate use of proclamations,
Introducing legislation
Anyone wishing to lay legislation before Parliament had first to decide where their bill should be presented for, as William Hakewill remarked, ‘it is in the choice of the party to prefer his bill first into the upper House or into the House of Commons … as he shall think it may most advantage his cause’.
During the first half of the sixteenth century parliaments had convened primarily with the aim of enacting government legislation. Thereafter, however, the volume of government bills declined sharply and by the early seventeenth century the Crown’s interest in legislation was modest.
Most Commons’ bills were introduced either by private individuals or independent corporations. It was by no means unusual for Members to draft legislation themselves, since many gentlemen entered Parliament in order to further their own legislative interests. Sir John Acland, for instance, primarily sought election in 1607 to promote a bill that would allow him to allocate some of the funds belonging to the sinecure prebend of Cutton, in his native Devon, to the establishment of a new school in the nearby village of Broad Clyst.
Not everyone approved of individual Members drafting private legislation. ‘No Member of the House ought to draw a private bill’, declared Thomas Crewe in 1621, ‘for he is a judge and ought to be indifferent’. Hakewill agreed, for though the practice was not unlawful ‘yet it cannot be but very inconvenient, seeing they are afterwards to be judges in the same course’.
Although Members who drafted their own legislation sometimes attracted disapproval, no one questioned the right of the Commons as a whole to draft bills. Under the early Stuarts, as under Elizabeth, it was common for public bills to originate with committees appointed by the House. In March 1604, for instance, the Commons ordered the committee appointed to consider the general motion of Sir Robert Wroth to draft bills against both monopolies and purveyance. Two months later, Sir Edward Montagu brought into the House two bills ‘drawn by the committees for religion’.
One measure that was only ever penned on the direct instructions of the Commons was the subsidy bill. Before 1597 it was customary for the attorney-general to draft the main text and for a committee to draw up the preamble. However, alternative arrangements had to be made in 1597, 1601 and 1606, as Attorney-General Coke preferred not to sit in the Commons. The solicitor general and the chancellor of the Exchequer, both of whom had seats, were given the task of drafting the body of the bill in 1597, and in 1606 the Commons appointed a committee to draft the whole bill.
There were two methods of introducing a bill to the Commons. The first, and by far the most common, was for the bill’s author or an agent acting on his behalf, to approach privately the Speaker or the clerk of the Commons (or their servants). Payments recorded in the accounts of the London livery companies, which regularly laid bills before the Commons before the mid 1620s, suggest that the Speaker was frequently visited at home. Some of these lobbyists were former Members of the Commons, whose knowledge of the workings of Parliament clearly made them useful to those seeking to introduce legislation. In 1604 the Brewers’ Company paid George Whitton, a veteran of three parliaments, £5 ‘to help us prefer our bill into the Parliament House’. Three years earlier the Brewers employed a certain ‘Mr Adams’, not only to draft a bill for them but also for ‘his pains to attend Mr Speaker’.
The second method of introducing legislation involved presenting it to the Speaker on the floor of the House. This approach had the advantage of letting everyone know who was behind the bill from the outset, which might be a source of suspicion if not declared. ‘Mr Speaker’, announced Francis Bacon in November 1601, ‘I am not of their minds that bring their bills into this House obscurely, by delivery only to yourself, or to the clerk, delighting to have the bill to be incerto authore as though they were ashamed of their own work or afraid to father their own children’.
Many Members like Bacon who publicly handed bills to the Speaker were lawyers, which perhaps indicates that they had penned the measures themselves.
Whether a bill was presented to the Speaker privately or openly, there was no guarantee that it would ever be read. When, in January 1629, Ignatius Jourdain publicly handed Speaker Finch a bill to print the marginal notes in the Bible, the House called for the measure to be ‘laid aside till another time’, a demand which one diarist correctly interpreted to mean that the bill ‘was not fit to have … read at all’.
Bill procedure and the workings of bill committees
Bills generally followed a common format. At the top of the first page was the title, below which was the text, consisting of a preamble and the enacting clause. The purpose of the preamble was to explain the necessity of the measure. In public bills the preamble tended to be fairly short, presumably because, as Chris Kyle has argued, most Members were familiar with public matters. However, in many private measures it was exceedingly long, sometimes running to several pages, as bill authors were apt to explain in detail the nature of their grievance or the background to the case.
Although they varied widely in length, bills shared the same physical characteristics. Unless they originated in the Lords, bills, like petitions, were meant to be submitted on paper rather than on parchment, as the process of transferring bills to parchment, known as engrossing, was reserved for measures that were intended to receive a third reading. In April 1604 the House turned a blind eye after the bill to establish a merchants’ court in London was submitted on parchment, but when a petition against purveyors was presented in the same form later that month, it was declared that in future ‘no petition, or other thing, [is] to be brought in ready engrossed, but in paper’.
There was no limit to the number of bills that could be read in a single day. Half a dozen was not unusual, but the number read largely depended on the volume of other business that needed to be transacted. On one day in April 1604, during brief the lull that followed the end of the Buckinghamshire election dispute, the Commons read no less than twenty-five bills – ten in the morning and fifteen in the afternoon.
In general it was at the discretion of the Speaker to decide which bills to read, but if there was a particular bill that a majority of Members wished to consider first the Commons was perfectly at liberty to overrule him. The supremacy of the House over its Speaker in this matter was so clear that when, in December 1601, one Member claimed that the House had no right to tell the Speaker which bill to read he was hissed. Nevertheless, the Speaker might resist calls to read a bill that he had not had time to inspect.
Priority was customarily given to public bills rather than private measures. Moreover, according to Hakewill, bills for the service of God or the good of the Church took precedence over other public bills, even legislation concerning the king, his revenue or his Household.
By the middle of Elizabeth’s reign it was customary for successful bills to receive three readings.
Every bill reading had two stages. First the bill was read aloud by the clerk. It was then handed to the Speaker who, standing bareheaded, summarized the contents briefly, either from memory or by reference to an abstract known as a breviate, which was meant to accompany every bill.
It was usual to leave an interval of two or three days between first and second readings to allow the Commons time to study a bill’s provisions.
Although two or three days normally separated bill readings, Hakewill observed that this custom might be disregarded when Members ‘lacketh other businesses wherein to employ themselves, especially if the bill be of no great importance’.
As a matter of courtesy, bills sent from the Lords were sometimes given more than one reading in a single day, particularly if they concerned peers or members of the royal family. Two examples have already been mentioned: the bill to recognize the king’s title in 1604 and the bill to naturalize the Elector Palatine in 1614. Others include the bill to confirm the jointure arrangements made for Anne of Denmark in 1604, and the bill to naturalize the marquess of Hamilton in 1624.
One measure that never received more than a single reading in the same day, no matter how urgent, was the subsidy bill. However, subsidy bills were subject to another convention peculiar to themselves: if the first reading took place during the morning, the second would occur in an afternoon, and vice versa.
It was unusual to reject a bill after only one reading, as it was generally assumed that Members would need to hear it twice before making up their minds. Indeed, just sixteen of the 173 bills examined by the 1624 House of Commons failed to proceed beyond a first reading.
Rare though it was for bills to be rejected at first reading, according to Hakewill it was the duty of the Speaker to discourage the practice. However, the Speaker could not disregard the wishes of the House, and despite querying whether ‘it were the custom to read every bill twice before it be cast away’, Phelips was unable to prevent the bill concerning the true manufacture of linen and sack cloth from being rejected after only one reading in January 1606.
The presumption that most bills were worthy of receiving at least two readings meant that the possibility for debate at first reading was severely limited. At first reading Members were not permitted to defend a bill or even criticize individual clauses, but only to call for the bill as a whole to be rejected.
It was much more common for bills to fail after a second reading than after a first. However, by the early seventeenth century it had become customary to regard bills that failed at this stage as ‘sleeping’ rather than as having been rejected. This is not always readily apparent from the Commons Journal, which frequently records that bills were ‘rejected’ at second reading, or even ‘dashed’.
The prohibition against reviving a bill that had been put to sleep until the next session was liable to be regarded as inconvenient. In November 1601 a government bill for the sowing of hemp, which had been made to sleep after its second reading three weeks earlier, was reintroduced by the Crown’s spokesmen and craftily given a new title. However, the subterfuge was spotted, and although the comptroller of the Household pleaded that ‘a bill of this nature might not so slightly be rejected’, it being essential for the maintenance of the Navy, his request was rejected after a division on the grounds that ‘a bill once cast out should be not be read again’.
A bill that survived second reading was placed in committee unless no fault could be found with it.
There was no limit to the number of changes to a bill that a committee might make, provided that the measure retained its overall sense. Indeed, it was not unknown for a committee to change even the title of a bill if it considered the original inadequate or misleading.
The Commons’ method of appointing bill committees was extraordinarily chaotic. Once the House had consented to the establishment of a committee, the Speaker invited the assembly to call out the names of those men whom it wished to serve on the new body. It then fell to the clerk to jot down those ‘whose names (in that confusion) he can hear’. Once the Speaker had decided that a ‘convenient number’ of names had been shouted out he would ask the House to assign the committee a time and place for its first meeting. Then, after the House had fallen silent, the clerk would read out, ‘with a loud voice’, the names of the committee members, together with the time and place of the commitment, ‘that the committees may take notice thereof’.
In theory, only those Members present in the chamber at the time that a bill committee was established were capable of being named to that committee.
The main function of bill committees was to improve the bills in their care. For this reason the Commons required that no one who was fundamentally opposed to a bill should serve on the committee, for as Hakewill put it, ‘he that would totally destroy will not amend’.
The principle of barring from committee membership those who had spoken against the body of a bill sometimes led the House to exclude anyone who, by virtue of their office, was deemed to be hostile to the bill. In March 1624, for instance, ‘Exchequer men’ were expressly forbidden to serve on the committee for the bill for pleading upon alienations without licence.
Despite the Commons’ attempt to exclude from committee membership those hostile to a bill in principle, some Members inevitably insinuated themselves onto committees in the hope of undermining confidence in measures they found disagreeable. In May 1614 Sir Francis Williamson, despite serving on the committee, declared his complete opposition to the bill to speed up the recovery of small debts, prompting the committee’s chairman, Nicholas Fuller, to remind him that ‘one that hath spoken at against the body of a bill cannot be a committee’.
Just as bill committees might be infiltrated by Members hostile to their aims, so too they might be dominated by men whose interests were closely allied to those of the bill’s author. Committees for private estate bills in particular, remarked Sir Francis Barnham, were often composed ‘for the most part’ of men who were ‘very favourably affected’ to them.
Many in the Commons considered that reform of the committee appointments system was needed. In April 1604 Richard Martin proposed that the existing method of nomination should be scrapped entirely. Instead, at the beginning of each day, a set number of names should be drawn from three urns, one each for the knights of the shire, citizens and burgesses. Those names selected would, in turn, be placed in a fourth urn, and whenever a bill was committed the Speaker would take from this urn the names of seven or nine Members, who would then serve on the committee.
One of the worst features of the existing system was that only those nominations called out by Members seated close to the table were likely to be heard by the clerk. In April 1614 Sir James Perrot moved ‘for the indifferent naming of committees’ after complaining that most of those chosen to serve were seated ‘about the chair’; those sitting at the lower end of the House, he grumbled, were ‘not heard, or not respected’.
Like all other committees, bill committees sat under the auspices of a chairman. By the 1620s most appear to have chosen the occupant of the chair themselves. Indeed, Sir Francis Popham claimed in 1625 that ‘it is against precedent that he that sits in the chair at a committee should be named by the House’.
According to the author of ‘Policies in Parliaments’ it was the chairman’s responsibility to read the bill to the committee, ‘and to every point, as they speak and agree, [he] amendeth the bill’. He also claimed that the chairman was not barred from debate, though if correct this practice was at variance with that of committees of the whole House. Forced into the chair of a grand committee against his will in 1621, Sir Dudley Digges ‘took it as a reprehension of his too much speaking that they would put him into a place of silence’.
The chairman naturally formed part of the committee’s quorum, so that if he were absent or late ‘the committee cannot proceed’.
The 1604 ruling ought to have made it impossible for the House to appoint minuscule committees such as the abovementioned four-strong body established to draft a bill against purveyors. However the new rule conflicted with historic practice: in 1621 Sir Thomas Hoby, drawing upon precedents from the reigns of Henry VI and Henry VIII, claimed that the minimum number needed to make a committee was half a dozen, while Edward Alford argued that ‘it was the ancient use not to have above eight’.
The procedure for voting in committee differed slightly from that followed in the Commons. In the House those opposed to changing the status quo – normally those Members against the motion – left their seats and trooped into the lobby. On re-entering the chamber the no voters were counted by tellers appointed by the Speaker, while those who remained in their seats were numbered separately.
Casting votes in writing or keeping a record of how each man had voted were practices that were generally frowned upon. When the Crown’s law officers lost a vote in committee in July 1607 over continuing the Marian statute against lawful assemblies, they demanded that lists of names be drawn up showing which way each man had cast his vote, but they were denied ‘lest the names should be showed to high persons’.
Bills that elicited protests outside the Commons sometimes merited special treatment. Counsel for both sides would be invited to attend to argue their clients’ case, and counsel for the side opposed to the bill was always heard first.
Bills that emerged from committee were reported to the House. The reporter, who seems normally to have been the committee’s chairman, was obliged to relay the condition of the bill in its entirety. When Sir Edwin Sandys called for a passage in the subsidy bill to be reported in 1624, Sir John Savile objected that it was ‘against all order or precedent to report a part or piece of a bill’.
Any clauses added to the bill in committee were subsequently read formally as many times as the bill itself, and were pinned to the bottom of the bill rather than the top.
Once a bill had progressed to third reading it became much harder to amend, as further alterations necessarily involved defacing the bill, which had already been transferred to parchment. Consequently anyone who announced that he had discovered a fault in the bill or raised an objection at third reading might cause the whole measure to fail.
Deleting unwanted text was easier than inserting new matter, and was done by the clerk or one of his servants, who scraped out the offending words with a knife at the clerk’s table in full view of the House. This practice was not universally popular, however, since ‘ill-disposed persons’ might, after a bill had been passed, secretly make their own erasures. To avoid this problem, it was proposed in 1610 that in future the Speaker and the lord keeper or lord chancellor should place their signatures alongside all erasures that had been legitimately made. However, the motion was ‘not further prosecuted’, as it was resolved instead that there should be ‘no more rasure in any bill in any great quantity’.
Where the addition of a few words was required there was generally no option but to interline the text, a task that was also performed by the clerk at the table. In the case of the 1621 informers bill however, the number of amendments needed was so great that interlining the existing text was impractical. Consequently, in accordance with a precedent dating from 1585, it was ordered that the bill should be re-engrossed.
Once a bill had passed its third reading it was sent to the Lords, though not before being annotated by the clerk. Those measures that had originated in the Commons were endorsed in the top right-hand corner of the first sheet with the words ‘soit baillé aux seigneurs’, while those that had begun life in the Lords were subscribed ‘a ceste Bille les Communs sont assentus’ at the foot of the first page.
Once a bill had reached the Lords it was no longer possible to amend it. When Sir Herbert Croft moved to send to the Lords in April 1606 asking them to correct an error in the bill for taking the four English border counties out of the jurisdiction of the council in Wales, it was ruled that ‘after a bill hath passed here, and remaineth with the Lords, we cannot send any message of reformation’.
The legislative crisis of the early seventeenth century and the growth of petitioning
During the sixteenth century the work of scrutinizing legislation formed the backbone of parliamentary business. Members came to Westminster primarily in the hope of passing legislation that would benefit their counties, their friends or their families. However, under the early Stuarts, as Elizabeth Read Foster has observed, legislation declined.
As is well known, the quarrel between the king and the Commons over impositions meant that the 1614 Parliament was legislatively sterile. For those lobbyists who had spent good money on bills, this was an unprecedented disaster, as no further opportunity to lay legislation before Parliament arose for more than six years. Consequently, by the time that the 1621 Parliament met there was an enormous pent up demand for the Commons’ legislative services. Just two months into the Parliament the clerk of the Commons calculated that there were 110 bills, including those that had been rejected, ‘in the schedule in the House’.
The difficulty of coping with this barrage of legislation was compounded by two or three closely related developments. The first was the revival of impeachment, which, as Conrad Russell observed, ‘was more exciting than bills, and … a great consumer of parliamentary time’. Many in the Commons now regarded ‘the little business of laws’, as the younger Sir Edward Conway put it in April 1624, as a tiresome distraction from the main business of the House – the investigation of grievances and the examination of the misconduct of the Crown’s advisers and ministers.
This disdain for legislation was encouraged by the development of standing committees of the whole House. Grand committees had first appeared in 1606, but not until 1621 did the Commons take the momentous step of placing four of them on a standing footing. As a consequence, afternoons were now largely given over to meetings of the House’s entire membership rather than to bill committees, which were forced to meet at irregular hours or not at all. Their attendance rates, which were never very impressive, appear to have suffered accordingly.
Faced with an avalanche of bills, and an afternoon timetable dominated by committees of the whole House, it is not surprising that the Commons proved incapable of handling the sheer volume of legislative business before it. Matters reached crisis point towards the end of May, when the king announced that he would shortly bring the session to a close. The news threw the Commons into a panic, for despite having sat since February many bills were not yet ready to be presented to the king. Many favoured asking James for additional time in which to complete the passage of legislation, while others thought it better to request an adjournment in place of the intended prorogation, so that when Parliament reconvened in the autumn the Commons would not have to begin the legislative process all over again. In the short term the Commons succeeded in buying additional time by persuading the king to grant an adjournment, but with the single exception of the subsidy bill its entire legislative programme was lost at the end of the year when James and the Commons fell out over the Spanish Match, a disagreement which led to an angry dissolution.
When Parliament next met, in 1624, no legislation (with the single exception of the 1621 subsidy bill) had been enacted for almost fourteen years. Once again the Commons found itself inundated with bills. During the three months in which the Parliament sat the House handled 173, but as in 1621 it struggled to keep abreast of its legislative business. Writing in April 1624, John Chappell, solicitor to the corporation of Exeter, advised the mayor of Exeter not to petition the Commons because the House was ‘possessed with many petitions and bills, and if every day were a week, yet would be time little enough to determine them, and many will come short in their expectation’. The following month the Rye Member John Angell, writing to explain why he had not yet laid before the House the town’s bill to take control of Dungeness lighthouse, declared that the Commons was so preoccupied with its grievances ‘that these ordinary businesses are put off from time to time and infinitely delayed’.
Unlike the parliaments of 1614 and 1621, the 1624 assembly managed to enact a number of important new measures, such as the monopolies bill and the bill against concealments. However, the success rate was hardly impressive: only 39% of all bills examined by both Houses reached the statute book, and only 36% of bills that began life in the Commons were enacted.
The experience of the 1624 Parliament might have served to revive London’s confidence in the Commons as a legislative body had it not been for the plague of 1625, which appeared to promise a short and unproductive meeting. Consequently, neither the Corporation nor any of the City’s institutions presented bills to Parliament. Outside the capital, however, not everyone seems to have shared the Londoners’ gloomy assessment, for although the Parliament did indeed prove to be short-lived, lasting barely seven weeks and sitting for just five, a total of 53 bills were laid before the Commons.
The 1626 Parliament witnessed the beginning of a collapse in the volume of legislation handled by the Commons. Although this Parliament sat for more than four months, the Commons read only 117 bills – far fewer than had received a hearing in the shorter Parliament of 1624.
Instead of focusing on legislation, the 1626 Parliament expended much of its time and energy in a vain attempt to impeach Buckingham. When the king refused to abandon his favourite, the Parliament became the third assembly (if the 1621 Parliament is included) to be dissolved without enacting any legislation in twelve years. Measured in terms of the Commons’ ability to attract legislative business, the impact of this failure on the next Parliament, which met in 1628, was catastrophic: only 73 bills were read by the Commons during the course of the 1628 session,
One symptom of the legislative crisis of the 1620s was a sharp decline in bills in favour of petitions. Petitioning had, of course, long been an accepted manner of approaching the Commons. Indeed, ‘in ancient times’, as Sir Edward Coke observed, ‘all Acts of Parliament were in form of petitions’.
The rise of petitions at the expense of bills is a phenomenon most clearly visible in the records of the City livery companies. In 1628, for instance, none of the City livery companies introduced legislation, whereas the Apothecaries, Brewers, Grocers, Goldsmiths and artisan Clothworkers all preferred petitions. At ground level, the switch to petitions can perhaps be best illustrated by reference to the Brewers’ Company. Between 1601 and 1614 the Brewers laid five separate bills before the Commons, of which only one – a measure promoted jointly with the Salters in 1610 – reached the statute book. During the 1620s, when they tried desperately to get a newly introduced impost on malt lifted, the Company petitioned the Commons instead.
Although the growth of petitioning was the result of a collapse in legislation it was also an inevitable consequence of the creation of standing committees of the whole House. These bodies were incapable of processing legislation, but were extremely good at examining grievances. Since they also had the effect of displacing bill committees from their customary position in the parliamentary timetable,
It was not just corporations and private individuals who decided that petitioning was preferable to legislation. Many Members had long considered that when dealing with the Crown petitions were more appropriate than bills, particularly when attempting to place limits on the royal prerogative. By couching their demands in the form of a petition rather than a bill Members could reasonably expect to avoid offending the monarch, who would otherwise be displeased if the Commons passed a bill restricting the Crown’s authority. It was for this reason that during the 1601 debate on the bill to prohibit the export of iron ordnance, Thomas Fettiplace declared that ‘to proceed by bill would savour of curbing Her Majesty’s prerogative, but to proceed by way of petition is a safe course and pleasing’. Besides, there was no guarantee that legislation, even were it enacted, would ultimately bind the monarch, as the latter enjoyed the power to dispense with inconvenient legislation at will. As William Spicer remarked during the monopolies debate of 1601, petitioning the queen was the ‘safest course, for it is to no purpose to offer to tie her hands by way of Act of Parliament when she may loose herself at her pleasure’.
Under the early Stuarts, however, the number of petitions presented to the monarch by the Commons rose sharply. In part this may have reflected a deterioration in relations between the Commons and the Lords. Whereas the consent of both Houses was needed before bills could be presented for royal approval, petitions could be laid before the monarch by the Commons alone. In May 1614 Sir Edwin Sandys proposed that the Commons should condemn impositions by way of petition rather than by bill, as petitions did not require the consent of the Lords, who subsequently refused even to confer about this important subject.
Despite the declining popularity of bills, petitioning never displaced legislation entirely. Indeed, in 1628 fractionally more bills than private petitions were read by the Commons. Moreover, towards the end of the 1620s there is some evidence that the pendulum had begun to swing back in favour of bills, for in 1629 the London Brewers, having repeatedly failed to gain redress through petitioning, once more contemplated introducing legislation.
The petitioning process
For private individuals and corporations who preferred not to proceed by bill, or for whom legislation was regarded as inappropriate, the correct way of addressing the Commons was by petition. When the warden of the Fleet wrote to ‘Mr Speaker and the rest of that honourable House’ from his prison cell in May 1604, it was moved ‘that he ought to submit himself by petition to the House, and not by letter’.
At the start of a Parliament petitions concerning disputed parliamentary elections were often laid before the House by individual Members, but thereafter they appear to have been directed by their authors to the committee for privileges and returns.
Petitions made the Commons an easy target for those wishing to make claims of a libellous or treasonous nature. In April 1614 Sir Edwin Sandys recommended that no petition should be considered unless it had been signed. Once the author was known and the petition had been read and allowed, the signature could be torn off if required.
The manner in which the Commons handled private petitions depended upon the nature of the petitions themselves. Those submitted in response to legislation, such as the 1626 Goldwiredrawers’ petition against the apparel bill, invariably prompted the House to summon the authors and invite them to be heard through their counsel, either in committee or at the bar.
The explosion of private petitions in the 1620s was mirrored by a marked increase in the number of petitions addressed to the king by the Commons itself. Perhaps the main reason for this rise was a growing perception that existing laws were either not being enforced or were being broken by the Crown. Since legislation under such circumstances was clearly futile, the only recourse available to the Commons was to petition the king. The Commons’ belief that there were grievances that could only be addressed through petitioning stimulated the revival of a long defunct form of petitioning during James’s reign, that of the petition of right.
Writing at the end of the 1620s, Sir Edward Coke declared that petitions drafted by the Commons could be divided into three sorts: petitions of grace, petitions of right and petitions containing matters of both grace and right.
Many petitions of grace were inoffensive to the monarch and contained requests that were uncontroversial. For instance, Charles made no difficulty when the Commons, in conjunction with the Lords, called upon him to order a general fast in both 1625 and 1628. Moreover, a polite request to be permitted to discuss matters pertaining to the royal prerogative was not calculated to displease. James certainly took no offence against the 1604 petition regarding purveyors. However, where the Commons did not first defer to the king but used petitions of grace as a mechanism with which to express its opinion in affairs of state, they were liable to prove deeply controversial.
Petitions of right, unlike petitions of grace, were demands for redress to which the king was obliged to give an answer, and consisted of complaints against a particular grievance, or set of grievances.
Unlike petitions of grace, petitions of right had fallen into disuse in the fifteenth century. The precise date of their revival under the early Stuarts is not entirely clear. William Hakewill, the best historian in the Commons and an unrivalled expert on Commons procedure, stated in 1628 that no petition of right had been formulated in the last 200 years.
Hakewill’s opinion has not been endorsed by Elizabeth Read Foster, who has concluded that by the end of James’s reign the Commons ‘had come to think of certain parliamentary petitions as petitions of right’. According to Foster the first petition of right of the early Stuart period was the 1604 petition against purveyors, but close examination of the text makes it clear that this document was in fact a petition of grace. The purpose of the 1604 petition was not, as Foster supposes, to demand that purveyance be properly regulated, but to ask James to allow the Commons to proceed by bill, the lower House having heard from the officers of the Greencloth that James would veto any legislation.
The third type of petition described by Coke combined both matters of right and grace. Like petitions of right, these hybrid petitions may have been new. The first to be drafted, perhaps, was the Form of Apology and Satisfaction of 1604, which described itself as being ‘several humble petitions … of different nature, some for right and some for grace’.
Not all petitions formulated by the Commons fall neatly into one of the three categories identified by Coke. The prime example is the petition against impositions of July 1610. At the committee established to ‘devise some course for drawing our petition in right to the king concerning these impositions’ it soon became apparent that, while some wanted to present the king with a petition of right, others wished to submit a petition of grace.
Little scholarly attention has been paid to the Commons’ procedures in respect of its own petitions. According to E.R. Foster, ‘procedure by petition remained flexible’ under Elizabeth, whereas the early Stuarts saw the development of a regular form of procedure that was virtually complete by 1625.
Whereas bills were normally read three times, the number of readings granted to petitions tended to fluctuate. During the 1604 session petitions formulated by the Commons received only two readings each, as did the petition against the Spanish Match in 1621. By contrast the 1606 grievances petition and the 1610 Petition of Right were both read three times.
Unlike the procedure employed with bills, it was not considered necessary to leave a minimum interval between each reading. The 1610 Petition of Right received all three readings on the same morning, and the second reading of the completed text of the 1628 Petition of Right took place immediately after the first on 26 May.
Like bills, petitions drafted by the Commons were engrossed, but the stage in proceedings at which this occurred remained flexible. The 1610 Petition of Right was not transferred to parchment until it had been given three readings, whereas the 1628 Petition of Right was engrossed before receiving a final reading on 27 May.
In theory the Commons was obliged to seek the agreement of the Lords to its petitions if the matters concerned were ‘general’. When the Commons resolved in March 1604 to ask the king to allow it to discuss compounding for wardship, ‘it was first propounded as necessary that the Lords, being part of the body and sensible of the same burden, should join in [the] petition’.
In practice, however, most Commons’ petitions were unilateral affairs. No help was sought from the Lords when the lower House petitioned the king against impositions in 1610, for instance, nor were the peers involved in the petition to break off the Spanish Match in 1621. One reason for this reluctance to seek the assistance of the Lords was a fear that the peers were not always willing to be cooperative. This suspicion was well grounded, for in March 1604 the Lords caused anger and dismay by refusing to join the Commons in petitioning the king on wardship, a setback which John Holles described as ‘an incomparable defeat’.
There was broad agreement that the Speaker, who was not permitted to carry any message in writing to the king, should not present petitions from the Commons.
A key disadvantage of petitions over bills was that they did not acquire the force of law even if the king consented to them. The royal answer, were one to be given, need not even be written down, nor was there any mechanism for ensuring that the king kept his word. This was clearly unsatisfactory, and from at least 1614 there were rumblings of discontent. In May 1614 Sir Edwin Sandys complained that a petition submitted in 1610 had never been answered in writing, but only ‘by word, by my lord treasurer’, the earl of Salisbury.