CHAPTER XIII

Transcriber's Note:

Inconsistent hyphenation and spelling in the original document have

been preserved. Obvious typographical errors have been corrected.

Italic text is denoted by _underscores_ and bold text by =equal

signs=.

On page 74, Christiern II. of Denmark may be a typo.

Footnote 36, peer should possibly be peers.

Footnote 133, confidents should possibly be confidants.

Footnote 210, domanial should possibly be domainal.

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CARLYLE

CONSTITUTIONAL HISTORY OF ENGLAND

HENRY VII TO GEORGE II.

BY HENRY HALLAM: VOL. 3

LONDON: PUBLISHED

by J. M. DENT & SONS LTD

AND IN NEW YORK

BY E. P. DUTTON & CO

CONTENTS

CHAPTER XIII

ON THE STATE OF THE CONSTITUTION UNDER CHARLES II.

Effect of the Press -- Restrictions upon it before and after the

Restoration -- Licensing Acts -- Political Writings checked by

the Judges -- Instances of illegal Proclamations not numerous --

Juries fined for Verdicts -- Question of their Right to return a

General Verdict -- Habeas Corpus Act passed -- Differences

between Lords and Commons -- Judicial Powers of the Lords

historically traced -- Their Pretensions about the Time of the

Restoration -- Resistance made by the Commons -- Dispute about

their original Jurisdiction -- And that in Appeals from Courts of

Equity -- Question of the exclusive Right of the Commons as to

Money-bills -- Its History -- The Right extended farther -- State

of the Upper House under the Tudors and Stuarts -- Augmentation

of the Temporal Lords -- State of the Commons -- Increase of

their Members -- Question as to Rights of Election -- Four

different Theories as to the Original Principle -- Their

Probability considered Page 1

CHAPTER XIV

THE REIGN OF JAMES II.

Designs of the King -- Parliament of 1685 -- King's Intention to

repeal the Test Act -- Deceived as to the Dispositions of his

Subjects -- Prorogation of Parliament -- Dispensing Power

confirmed by the Judges -- Ecclesiastical Commission -- King's

Scheme of establishing Popery -- Dismissal of Lord Rochester --

Prince of Orange alarmed -- Plan of setting the Princess aside --

Rejected by the King -- Overtures of the Malcontents to Prince of

Orange -- Declaration for Liberty of Conscience -- Addresses in

favour of it -- New-modelling of the Corporations -- Affair of

Magdalen College -- Infatuation of the King -- His Coldness

towards Louis -- Invitation signed to the Prince of Orange --

Birth of Prince of Wales -- Justice and Necessity of the

Revolution -- Favourable Circumstances attending it -- Its

salutary Consequences -- Proceedings of the Convention -- Ended

by the Elevation of William and Mary to the Throne Page 43

CHAPTER XV

ON THE REIGN OF WILLIAM III.

Declaration of Rights -- Bill of Rights -- Military Force

without Consent declared illegal -- Discontent with the new

Government -- its Causes -- Incompatibility of the Revolution

with received Principles -- Character and Errors of William --

Jealousy of the Whigs -- Bill of Indemnity -- Bill for Restoring

Corporations -- Settlement of the Revenue -- Appropriation of

Supplies -- Dissatisfaction of the King -- No Republican Party in

Existence -- William employs Tories in Ministry -- Intrigues with

the late King -- Schemes for his Restoration -- Attainder of Sir

John Fenwick -- Ill Success of the War -- Its Expenses -- Treaty

of Ryswick -- Jealousy of the Commons -- Army reduced -- Irish

Forfeitures resumed -- Parliamentary Enquiries -- Treaties of

Partition -- Improvements in Constitution under William -- Bill

for Triennial Parliaments -- Law of Treason -- Statute of Edward

III. -- Its constructive Interpretation -- Statute of William

III. -- Liberty of the Press -- Law of Libel -- Religious

Toleration -- Attempt at Comprehension -- Schism of the

Non-jurors -- Laws against Roman Catholics -- Act of Settlement

-- Limitations of Prerogative contained in it -- Privy Council

superseded by a Cabinet -- Exclusion of Placemen and Pensioners

from Parliament -- Independence of Judges -- Oath of Abjuration

Page 90

CHAPTER XVI

ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE, GEORGE

I., AND GEORGE II.

Termination of Contest between the Crown and Parliament --

Distinctive Principles of Whigs and Tories -- Changes effected in

these by Circumstances -- Impeachment of Sacheverel displays them

again -- Revolutions in the Ministry under Anne -- War of the

Succession -- Treaty of Peace broken off -- Renewed again by the

Tory Government -- Arguments for and against the Treaty of

Utrecht -- The Negotiation mismanaged -- Intrigues of the

Jacobites -- Some of the Ministers engage in them -- Just alarm

for the Hanover Succession -- Accession of George I. -- Whigs

come into Power -- Great Disaffection in the Kingdom --

Impeachment of Tory Ministers -- Bill for septennial Parliaments

-- Peerage Bill -- Jacobitism among the Clergy -- Convocation --

Its Encroachments -- Hoadley -- Convocation no longer suffered to

sit -- Infringements of the Toleration by Statutes under Anne --

They are repealed by the Whigs -- Principles of Toleration fully

established -- Banishment of Atterbury -- Decline of the

Jacobites -- Prejudices against the reigning Family -- Jealousy

of the Crown -- Changes in the Constitution whereon it was

founded -- Permanent military Force -- Apprehensions from it --

Establishment of Militia -- Influence over Parliament by Places

and Pensions -- Attempts to restrain it -- Place Bill of 1743 --

Secret Corruption -- Commitments for Breach of Privilege -- of

Members for Offences -- of Strangers for Offences against Members

-- or for Offences against the House -- Kentish Petition of 1701

-- Dispute with Lords about Aylesbury Election -- Proceedings

against Mr. Murray in 1751 -- Commitments for Offences

unconnected with the House -- Privileges of the House not

controllable by Courts of Law -- Danger of stretching this too

far -- Extension of Penal Laws -- Diminution of personal

Authority of the Crown -- Causes of this -- Party Connections --

Influence of Political Writings -- Publication of Debates --

Increased Influence of the Middle Ranks Page 175

CHAPTER XVII

ON THE CONSTITUTION OF SCOTLAND

Early State of Scotland -- Introduction of Feudal System --

Scots Parliament -- Power of the Aristocracy -- Royal Influence

in Parliament -- Judicial Power -- Court of Session --

Reformation -- Power of the Presbyterian Clergy -- Their Attempts

at Independence on the State -- Andrew Melville -- Success of

James VI. in restraining them -- Establishment of Episcopacy --

Innovations of Charles I. -- Arbitrary Government -- Civil War --

Tyrannical Government of Charles II. -- Reign of James VII. --

Revolution and Establishment of Presbytery -- Reign of William

III. -- Act of Security -- Union -- Gradual Decline of Jacobitism

Page 266

CHAPTER XVIII

ON THE CONSTITUTION OF IRELAND

Ancient State of Ireland -- Its Kingdoms and Chieftainships --

Law of Tanistry and Gavel-kind -- Rude State of Society --

Invasion of Henry II. -- Acquisitions of English Barons -- Forms

of English Constitution established -- Exclusion of Native Irish

from them -- Degeneracy of English Settlers -- Parliament of

Ireland -- Disorderly State of the Island -- The Irish regain

part of their Territories -- English Law confined to the Pale --

Poyning's Law -- Royal Authority revives under Henry VIII. --

Resistance of Irish to Act of Supremacy -- Protestant Church

established by Elizabeth -- Effects of this Measure -- Rebellions

of her Reign -- Opposition in Parliament -- Arbitrary Proceedings

of Sir Henry Sidney -- James I. -- Laws against Catholics

enforced -- English Law established throughout Ireland --

Settlements of English in Munster, Ulster, and other Parts --

Injustice attending them -- Constitution of Irish Parliament --

Charles I. promises Graces to the Irish -- Does not confirm them

-- Administration of Strafford -- Rebellion of 1641 --

Subjugation of Irish by Cromwell -- Restoration of Charles II. --

Act of Settlement -- Hopes of Catholics under Charles and James

-- War of 1689, and final Reduction of Ireland -- Penal Laws

against Catholics -- Dependence of Irish on English Parliament --

Growth of a Patriotic Party in 1753 Page 299

CONSTITUTIONAL HISTORY OF ENGLAND

FROM HENRY VII. TO GEORGE II.

CHAPTER XIII

ON THE STATE OF THE CONSTITUTION UNDER CHARLES II.

It may seem rather an extraordinary position, after the last chapters,

yet is strictly true, that the fundamental privileges of the subject

were less invaded, the prerogative swerved into fewer excesses, during

the reign of Charles II. than perhaps in any former period of equal

length. Thanks to the patriot energies of Selden and Eliot, of Pym and

Hampden, the constitutional boundaries of royal power had been so well

established that no minister was daring enough to attempt any flagrant

and general violation of them. The frequent session of parliament, and

its high estimation of its own privileges, furnished a security

against illegal taxation. Nothing of this sort has been imputed to the

government of Charles, the first King of England, perhaps, whose reign

was wholly free from such a charge. And as the nation happily escaped

the attempts that were made after the restoration, to revive the

star-chamber and high-commission courts, there was no means of

chastising political delinquencies, except through the regular

tribunals of justice, and through the verdict of a jury. Ill as the

one were often constituted, and submissive as the other might often be

found, they afforded something more of a guarantee, were it only by

the publicity of their proceedings, than the dark and silent divan of

courtiers and prelates who sat in judgment under the two former kings.

Though the bench was frequently subservient, the bar contained

high-spirited advocates, whose firm defence of their clients the

judges often reproved, but no longer affected to punish. The press,

above all, was in continual service. An eagerness to peruse cheap and

ephemeral tracts on all subjects of passing interest had prevailed

ever since the reformation. These had been extraordinarily multiplied

from the meeting of the long parliament. Some thousand pamphlets of

different descriptions, written between that time and the restoration,

may be found in the British Museum; and no collection can be supposed

to be perfect. It would have required the summary process and stern

severity of the court of star-chamber to repress this torrent, or

reduce it to those bounds which a government is apt to consider as

secure. But the measures taken with this view under Charles II.

require to be distinctly noticed.

_Effect of the press_--_Restrictions upon it before and after the

restoration._--In the reign of Henry VIII., when the political

importance of the art of printing, especially in the great question of

the reformation, began to be apprehended, it was thought necessary to

assume an absolute control over it, partly by the king's general

prerogative, and still more by virtue of his ecclesiastical

supremacy.[1] Thus it became usual to grant by letters patent the

exclusive right of printing the Bible or religious books, and

afterwards all others. The privilege of keeping presses was limited to

the members of the stationers' company, who were bound by regulations

established in the reign of Mary by the star-chamber, for the

contravention of which they incurred the speedy chastisement of that

vigilant tribunal. These regulations not only limited the number of

presses, and of men who should be employed on them, but subjected new

publications to the previous inspection of a licencer. The long

parliament did not hesitate to copy this precedent of a tyranny they

had overthrown; and by repeated ordinances against unlicensed

printing, hindered, as far as in them lay, this great instrument of

political power from serving the purposes of their adversaries. Every

government, however popular in name or origin, must have some

uneasiness from the great mass of the multitude, some vicissitudes of

public opinion to apprehend; and experience shows that republics,

especially in a revolutionary season, shrink as instinctively, and

sometimes as reasonably, from an open licence of the tongue and pen,

as the most jealous court. We read the noble apology of Milton for the

freedom of the press with admiration; but it had little influence on

the parliament to whom it was addressed.

_Licensing acts._--It might easily be anticipated, from the general

spirit of Lord Clarendon's administration, that he would not suffer

the press to emancipate itself from these established shackles.[2] A

bill for the regulation of printing failed in 1661, from the Commons'

jealousy of the Peers who had inserted a clause exempting their own

houses from search.[3] But next year a statute was enacted, which,

reciting the well-government and regulating of printers and

printing-presses to be matter of public care and concernment, and that

by the general licentiousness of the late times many evil-disposed

persons had been encouraged to print and sell heretical and seditious

books, prohibits every private person from printing any book or

pamphlet, unless entered with the stationers' company, and duly

licensed in the following manner; to wit, books of law by the

chancellor or one of the chief justices, of history and politics by

the secretary of state, of heraldry by the kings at arms, of divinity,

physic or philosophy, by the bishops of Canterbury or London, or if

printed in either university, by its chancellor. The number of

master-printers was limited to twenty; they were to give security, to

affix their names, and to declare the author, if required by the

licencer. The king's messengers, by warrant from a secretary of state,

or the master and wardens of the stationers' company, were empowered

to seize unlicensed copies wherever they should think fit to search

for them, and, in case they should find any unlicensed book suspected

to contain matters contrary to the church or state, they were to bring

them to the two bishops before mentioned, or one of the secretaries.

No books were allowed to be printed out of London, except in York and

in the universities. The penalties for printing without licence were

of course heavy.[4] This act was only to last three years; and after

being twice renewed (the last time until the conclusion of the first

session of the next parliament), expired consequently in 1679; an æra

when the House of Commons were happily in so different a temper that

any attempt to revive it must have proved abortive. During its

continuance, the business of licensing books was entrusted to Sir

Roger L'Estrange, a well-known pamphleteer of that age, and himself a

most scurrilous libeller in behalf of the party he espoused, that of

popery and despotic power. It is hardly necessary to remind the reader

of the objections that were raised to one or two lines in _Paradise

Lost_.

_Political writings checked by the judges._--Though a previous licence

ceased to be necessary, it was held by all the judges, having met for

this purpose (if we believe Chief Justice Scroggs) by the king's

command, that all books scandalous to the government or to private

persons may be seized, and the authors or those exposing them

punished: and that all writers of false news, though not scandalous or

seditious, are indictable on that account.[5] But in a subsequent

trial he informs the jury that, "when by the king's command we were to

give in our opinion what was to be done in point of regulation of the

press, we did all subscribe that to print or publish any news, books,

or pamphlets of news whatsoever is illegal; that it is a manifest

intent to the breach of the peace, and they may be proceeded against

by law as an illegal thing.[6] Suppose now that this thing is not

scandalous, what then? If there had been no reflection in this book at

all, yet it is _illicite_; and the author ought to be convicted for

it. And that is for a public notice to all people, and especially

printers and booksellers, that they ought to print no book or pamphlet

of news whatsoever without authority." The pretended libel in this

case was a periodical pamphlet, entitled the _Weekly Pacquet of Advice

from Rome_; being rather a virulent attack on popery, than serving the

purpose of a newspaper. These extraordinary propositions were so far

from being loosely advanced, that the court of king's bench proceeded

to make an order, that the book should no longer be printed or

published by any person whatsoever.[7] Such an order was evidently

beyond the competence of that court, were even the prerogative of the

king in council as high as its warmest advocates could strain it. It

formed accordingly one article of the impeachment voted against

Scroggs in the next session.[8] Another was for issuing general

warrants (that is, warrants wherein no names are mentioned) to seize

seditious libels and apprehend their authors.[9] But this impeachment

having fallen to the ground, no check was put to general warrants, at

least from the secretary of state, till the famous judgment of the

court of common pleas in 1764.

_Instances of illegal proclamations not numerous._--Those

encroachments on the legislative supremacy of parliament, and on the

personal rights of the subject, by means of proclamations issued from

the privy council, which had rendered former princes of both the Tudor

and Stuart families almost arbitrary masters of their people, had

fallen with the odious tribunal by which they were enforced. The king

was restored to nothing but what the law had preserved to him. Few

instances appear of illegal proclamations in his reign. One of these,

in 1665, required all officers and soldiers who had served in the

armies of the late usurped powers to depart the cities of London and

Westminster, and not to return within twenty miles of them before the

November following. This seems connected with the well-grounded

apprehension of a republican conspiracy.[10] Another, immediately

after the fire of London, directed the mode in which houses should be

rebuilt, and enjoined the lord mayor and other city magistrates to

pull down whatsoever obstinate and refractory persons might presume to

erect upon pretence that the ground was their own; and especially that

no houses of timber should be erected for the future.[11] Though the

public benefit of this restriction, and of some order as to the

rebuilding of a city which had been destroyed in great measure through

the want of it, was sufficiently manifest, it is impossible to justify

the tone and tenor of this proclamation; and more particularly as the

meeting of parliament was very near at hand. But an act having passed

therein for the same purpose, the proclamation must be considered as

having had little effect. Another instance, and far less capable of

extenuation, is a proclamation for shutting up coffee-houses, in

December 1675. I have already mentioned this as an intended measure of

Lord Clarendon. Coffee-houses were all at that time subject to a

licence, granted by the magistrates at quarter sessions. But, the

licences having been granted for a certain time, it was justly

questioned whether they could in any manner be revoked. This

proclamation being of such disputable legality, the judges, according

to North, were consulted, and intimating to the council that they were

not agreed in opinion upon the most material questions submitted to

them, it seemed advisable to recall it.[12] In this essential matter

of proclamations, therefore, the administration of Charles II. is very

advantageously compared with that of his father; and considering at

the same time the entire cessation of impositions of money without

consent of parliament, we must admit that, however dark might be his

designs, there were no such general infringements of public liberty in

his reign as had continually occurred before the long parliament.

One undeniable fundamental privilege had survived the shocks of every

revolution; and in the worst times, except those of the late

usurpation, had been the standing record of primeval liberty--the

trial by jury: whatever infringement had been made on this, in many

cases of misdemeanour, by the pretended jurisdiction of the

star-chamber, it was impossible, after the bold reformers of 1641 had

lopped off that unsightly excrescence from the constitution, to

prevent a criminal charge from passing the legal course of

investigation through the inquest of a grand jury, and the verdict in

open court of a petty jury. But the judges, and other ministers of

justice, for the sake of their own authority or that of the Crown,

devised various means of subjecting juries to their own direction, by

intimidation, by unfair returns of the panel, or by narrowing the

boundaries of their lawful function.

_Juries fined for verdicts._--It is said to have been the practice in

early times, as I have mentioned from Sir Thomas Smith in another

place, to fine juries for returning verdicts against the direction of

the court, even as to matter of evidence, or to summon them before the

star-chamber. It seems that instances of this kind were not very

numerous after the accession of Elizabeth; yet a small number occur in

our books of reports. They were probably sufficient to keep juries in

much awe. But after the restoration, two judges, Hyde and Keeling,

successively chief justices of the king's bench, took on them to

exercise a pretended power, which had at least been intermitted in the

time of the commonwealth. The grand jury of Somerset having found a

bill for manslaughter instead of murder, against the advice of the

latter judge, were summoned before the court of king's bench, and

dismissed with a reprimand instead of a fine.[13] In other cases fines

were set on petty juries for acquittals against the judge's direction.

This unusual and dangerous inroad on so important a right attracted

the notice of the House of Commons; and a committee was appointed, who

reported some strong resolutions against Keeling for illegal and

arbitrary proceedings in his office, the last of which was, that he be

brought to trial, in order to condign punishment, in such manner as

the house should deem expedient. But the chief justice, having

requested to be heard at the bar, so far extenuated his offence that

the house, after resolving that the practice of fining or imprisoning

jurors is illegal, came to a second resolution to proceed no farther

against him.[14]

_Question of their right to return a general verdict._--The

precedents, however, which these judges endeavoured to establish, were

repelled in a more decisive manner than by a resolution of the House

of Commons. For in two cases, where the fines thus imposed upon jurors

had been estreated into the exchequer, Hale, then chief baron, with

the advice of most of the judges of England, as he informs us, stayed

process; and in a subsequent case it was resolved by all the judges,

except one, that it was against law to fine a jury for giving a

verdict contrary to the court's direction. Yet notwithstanding this

very recent determination, the recorder of London, in 1670, upon the

acquittal of the quakers, Penn and Mead, on an indictment for an

unlawful assembly, imposed a fine of forty marks on each of the

jury.[15] Bushell, one of their number, being committed for

non-payment of this fine, sued his writ of habeas corpus from the

court of common pleas; and on the return made that he had been

committed for finding a verdict against full and manifest evidence,

and against the direction of the court, Chief Justice Vaughan held the

ground to be insufficient, and discharged the party. In his reported

judgment on this occasion, he maintains the practice of fining jurors,

merely on this account, to be comparatively recent, and clearly

against law.[16] No later instance of it is recorded; and perhaps it

can only be ascribed to the violence that still prevailed in the House

of Commons against nonconformists, that the recorder escaped its

animadversion.

In this judgment of the Chief Justice Vaughan, he was led to enter on

a question much controverted in later times, the legal right of the

jury, without the direction of the judge, to find a general verdict in

criminal cases, where it determines not only the truth of the facts as

deposed, but their quality of guilt or innocence; or as it is

commonly, though not perhaps quite accurately worded, to judge of the

law as well as the fact. It is a received maxim with us, that the

judge cannot decide on questions of fact, nor the jury on those of

law. Whenever the general principle, or what may be termed the major

proposition of the syllogism, which every litigated case contains, can

be extracted from the particular circumstances to which it is supposed

to apply, the court pronounce their own determination, without

reference to a jury. The province of the latter, however, though it

properly extend not to any general decision of the law, is certainly

not bounded, at least in modern times, to a mere estimate of the truth

of testimony. The intention of the litigant parties in civil matters,

of the accused in crimes, is in every case a matter of inference from

the testimony or from the acknowledged facts of the case; and wherever

that intention is material to the issue, is constantly left for the

jury's deliberation. There are indeed rules in criminal proceedings

which supersede this consideration; and where, as it is expressed,

the law presumes the intention in determining the offence. Thus, in

the common instance of murder or manslaughter, the jury cannot legally

determine that provocation to be sufficient, which by the settled

rules of law is otherwise; nor can they, in any case, set up novel and

arbitrary constructions of their own without a disregard of their

duty. Unfortunately it has been sometimes the disposition of judges to

claim to themselves the absolute interpretation of facts, and the

exclusive right of drawing inferences from them, as it has

occasionally, though not perhaps with so much danger, been the failing

of juries to make their right of returning a general verdict

subservient to faction or prejudice. Vaughan did not of course mean to

encourage any petulance in juries that should lead them to pronounce

on the law, nor does he expatiate so largely on their power as has

sometimes since been usual; but confines himself to a narrow, though

conclusive line of argument, that as every issue of fact must be

supported by testimony, upon the truth of which the jury are

exclusively to decide, they cannot be guilty of any legal misdemeanour

in returning their verdict, though apparently against the direction of

the court in point of law; since it cannot ever be proved that they

believed the evidence upon which that direction must have rested.[17]

_Habeas corpus act passed._--I have already pointed out to the

reader's notice that article of Clarendon's impeachment which charges

him with having caused many persons to be imprisoned against law.[18]

These were released by the Duke of Buckingham's administration, which

in several respects acted on a more liberal principle than any other

in this reign. The practice was not however wholly discontinued.

Jenkes, a citizen of London on the popular or factious side, having

been committed by the king in council for a mutinous speech in

Guildhall, the justices at quarter sessions refused to admit him to

bail, on pretence that he had been committed by a superior court; or

to try him, because he was not entered in the calendar of prisoners.

The chancellor, on application for a habeas corpus, declined to issue

it during the vacation; and the chief justice of the king's bench, to

whom, in the next place, the friends of Jenkes had recourse, made so

many difficulties that he lay in prison for several weeks.[19] This

has been commonly said to have produced the famous act of habeas

corpus. But this is not truly stated. The arbitrary proceedings of

Lord Clarendon were what really gave rise to it. A bill to prevent the

refusal of the writ of habeas corpus was brought into the house on

April 10, 1668, but did not pass the committee in that session.[20]

But another to the same purpose, probably more remedial, was sent up

to the Lords in March 1669-70.[21] It failed of success in the upper

house; but the Commons continued to repeat their struggle for this

important measure, and in the session of 1673-4 passed two bills, one

to prevent the imprisonment of the subject in gaols beyond the seas,

another to give a more expeditious use of the writ of habeas corpus in

criminal matters.[22] The same or similar bills appear to have gone up

to the Lords in 1675. It was not till 1676 that the delay of Jenkes's

habeas corpus took place. And this affair seems to have had so

trifling an influence that these bills were not revived for the next

two years, notwithstanding the tempests that agitated the house during

that period.[23] But in the short parliament of 1679, they appear to

have been consolidated into one, that having met with better success

among the Lords, passed into a statute, and is generally denominated

the habeas corpus act.[24]

It is a very common mistake, and that not only among foreigners, but

many from whom some knowledge of our constitutional laws might be

expected, to suppose that this statute of Charles II. enlarged in a

great degree our liberties, and forms a sort of epoch in their

history. But though a very beneficial enactment, and eminently

remedial in many cases of illegal imprisonment, it introduced no new

principle, nor conferred any right upon the subject. From the earliest

records of the English law, no freeman could be detained in prison,

except upon a criminal charge or conviction, or for a civil debt. In

the former case, it was always in his power to demand of the court of

king's bench a writ of habeas corpus ad subjiciendum, directed to the

person detaining him in custody, by which he was enjoined to bring up

the body of the prisoner, with the warrant of commitment, that the

court might judge of its sufficiency, and remand the party, admit him

to bail, or discharge him, according to the nature of the charge. This

writ issued of right, and could not be refused by the court. It was

not to bestow an immunity from arbitrary imprisonment, which is

abundantly provided in Magna Charta (if indeed it were not much more

ancient), that the statute of Charles II. was enacted; but to cut off

the abuses, by which the government's lust of power, and the servile

subtlety of Crown lawyers, had impaired so fundamental a privilege.

There had been some doubts whether the court of common pleas could

issue this writ; and the court of exchequer seems never to have done

so.[25] It was also a question, and one of more importance, as we have

seen in the case of Jenkes, whether a single judge of the court of

king's bench could issue it during the vacation. The statute therefore

enacts that where any person, other than persons convicted or in

execution upon legal process, stands committed for any crime, except

for treason or felony plainly expressed in the warrant of commitment,

he may during the vacation complain to the chancellor, or any of the

twelve judges; who upon sight of a copy of the warrant, or an

affidavit that a copy is denied, shall award a habeas corpus directed

to the officer in whose custody the party shall be, commanding him to

bring up the body of his prisoner within a time limited according to

the distance, but in no case exceeding twenty days, who shall

discharge the party from imprisonment, taking surety for his

appearance in the court wherein his offence is cognisable. A gaoler

refusing a copy of the warrant of commitment or not obeying the writ

is subjected to a penalty of £100; and even the judge denying a habeas

corpus, when required according to this act, is made liable to a

penalty of £500 at the suit of the injured party. The court of king's

bench had already been accustomed to send out their writ of habeas

corpus into all places of peculiar and privileged jurisdiction, where

this ordinary process does not run, and even to the island of Jersey,

beyond the strict limits of the kingdom of England;[26] and this

power, which might admit of some question, is sanctioned by a

declaratory clause of the present statute. Another section enacts,

that "no subject of this realm that now is, or hereafter shall be, an

inhabitant or resiant of this kingdom of England, dominion of Wales,

or town of Berwick-upon-Tweed, shall be sent prisoner into Scotland,

Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands,

or places beyond the seas, which are, or at any time hereafter shall

be, within or without the dominions of his majesty, his heirs, or

successors," under penalties of the heaviest nature short of death

which the law then knew, and an incapacity of receiving the king's

pardon. The great rank of those who were likely to offend against this

part of the statute was, doubtless, the cause of this unusual

severity.

But as it might still be practicable to evade these remedial

provisions by expressing some matter of treason or felony in the

warrant of commitment, the judges not being empowered to enquire into

the truth of the facts contained in it, a further security against any

protracted detention of an innocent man is afforded by a provision of

great importance; that every person committed for treason or felony,

plainly and specially expressed in the warrant, may, unless he shall

be indicted in the next term, or at the next sessions of general gaol

delivery after his commitment, be, on prayer to the court, released

upon bail, unless it shall appear that the Crown's witnesses could not

be produced at that time; and if he shall not be indicted and tried in

the second term or sessions of gaol delivery, he shall be discharged.

The remedies of the habeas corpus act are so effectual that no man

can possibly endure any long imprisonment on a criminal charge, nor

would any minister venture to exercise a sort of oppression so

dangerous to himself. But it should be observed that, as the statute

is only applicable to cases of commitment on such a charge, every

other species of restraint on personal liberty is left to the ordinary

remedy, as it subsisted before this enactment. Thus a party detained

without any warrant must sue out his habeas corpus at common law; and

this is at present the more usual occurrence. But the judges of the

king's bench, since the statute, have been accustomed to issue this

writ during the vacation in all cases whatsoever. A sensible

difficulty has, however, been sometimes felt, from their incompetency

to judge of the truth of a return made to the writ. For, though in

cases within the statute the prisoner may always look to his legal

discharge at the next sessions of gaol delivery, the same redress

might not always be obtained when he is not in custody of a common

gaoler. If the person therefore who detains any one in custody should

think fit to make a return to the writ of habeas corpus, alleging

matter sufficient to justify the party's restraint, yet false in fact,

there would be no means, at least by this summary process, of

obtaining relief. An attempt was made in 1757, after an examination of

the judges by the House of Lords as to the extent and efficiency of

the habeas corpus at common law, to render their jurisdiction more

remedial.[27] It failed however, for the time, of success; but a

statute has recently been enacted,[28] which not only extends the

power of issuing the writ during the vacation, in cases not within the

act of Charles II., to all the judges, but enables the judge, before

whom the writ is returned, to enquire into the truth of the facts

alleged therein, and in case they shall seem to him doubtful, to

release the party in custody, on giving surety to appear in the court

to which such judge shall belong, on some day in the ensuing term,

when the court may examine by affidavit into the truth of the facts

alleged in the return, and either remand or discharge the party,

according to their discretion. It is also declared that a writ of

habeas corpus shall run to any harbour or road on the coast of

England, though out of the body of any county; in order, I presume, to

obviate doubts as to the effects of this remedy in a kind of illegal

detention, more likely perhaps than any other to occur in modern

times, on board of vessels upon the coast. Except a few of this

description, it is very rare for a habeas corpus to be required in any

case where the government can be presumed to have an interest.

_Differences between lords and commons._--The reign of Charles II. was

hardly more remarkable by the vigilance of the House of Commons

against arbitrary prerogative than by the warfare it waged against

whatever seemed an encroachment or usurpation in the other house of

parliament. It has been a peculiar happiness of our constitution that

such dissensions have so rarely occurred. I cannot recollect any

republican government, ancient or modern (except perhaps some of the

Dutch provinces), where hereditary and democratical authority have

been amalgamated so as to preserve both in effect and influence,

without continual dissatisfaction and reciprocal encroachments; for

though, in the most tranquil and prosperous season of the Roman state,

one consul, and some magistrates of less importance, were invariably

elected from the patrician families, these latter did not form a

corporation, nor had any collective authority in the government. The

history of monarchies, including of course all states where the

principality is lodged in a single person, that have admitted the

aristocratical and popular temperaments at the same time, bears

frequent witness to the same jealous or usurping spirit. Yet monarchy

is unquestionably more favourable to the co-existence of an hereditary

body of nobles with a representation of the commons than any other

form of commonwealth; and it is to the high prerogative of the English

Crown, its exclusive disposal of offices of trust which are the

ordinary subjects of contention, its power of putting a stop to

parliamentary disputes by a dissolution, and, above all, to the

necessity which both the Peers and the Commons have often felt, of a

mutual good understanding for the maintenance of their privileges,

that we must in a great measure attribute the general harmony, or at

least the absence of open schism, between the two houses of

parliament. This is, however, still more owing to the happy graduation

of ranks, which renders the elder and the younger sons of our nobility

two links in the unsevered chain of society; the one trained in the

school of popular rights, and accustomed, for a long portion of their

lives, to regard the privileges of the house whereof they form a part,

full as much as those of their ancestors;[29] the other falling

without hereditary distinction into the class of other commoners, and

mingling the sentiments natural to their birth and family affection,

with those that are more congenial to the whole community. It is owing

also to the wealth and dignity of those ancient families, who would be

styled noble in any other country, and who give an aristocratical

character to the popular part of our legislature, and to the influence

which the peers themselves, through the representation of small

boroughs, are enabled to exercise over the lower house.

_Judicial powers of the lords historically traced._--The original

constitution of England was highly aristocratical. The peers of this

realm, when summoned to parliament (and on such occasions every peer

was entitled to his writ), were the necessary counsellors and

coadjutors of the king in all the functions that appertain to a

government. In granting money for the public service, in changing by

permanent statutes the course of the common law, they could only act

in conjunction with the knights, citizens, and burgesses of the lower

house of parliament. In redress of grievances, whether of so private a

nature as to affect only single persons or extending to a county or

hundred, whether proceeding from the injustice of public officers or

of powerful individuals, whether demanding punishment as crimes

against the state, or merely restitution and damages to the injured

party, the Lords assembled in parliament were competent, as we find in

our records, to exercise the same high powers, if they were not even

more extensive and remedial, as the king's ordinary council, composed

of his great officers, his judges, and perhaps some peers, was wont to

do in the intervals of parliament. These two, the Lords and the privy

council, seem to have formed, in the session, one body or great

council, wherein the latter had originally right of suffrage along

with the former. In this judicial and executive authority, the Commons

had at no time any more pretence to interfere than the council, or

the Lords by themselves, had to make ordinances, at least of a general

and permanent nature, which should bind the subject to obedience. At

the beginning of every parliament numerous petitions were presented to

the Lords, or to the king and Lords (since he was frequently there in

person, and always presumed to be so), complaining of civil injuries

and abuse of power. These were generally indorsed by appointed

receivers of petitions, and returned by them to the proper court

whence relief was to be sought.[30] For an immediate inquiry and

remedy seem to have been rarely granted, except in cases of an

extraordinary nature, when the law was defective, or could not easily

be enforced by the ordinary tribunals; the shortness of sessions, and

multiplicity of affairs, preventing the upper house of parliament from

entering so fully into these matters as the king's council had leisure

to do.

It might perhaps be well questioned, notwithstanding the considerable

opinion of Sir M. Hale, whether the statutes directed against the

prosecution of civil and criminal suits before the council are so

worded as to exclude the original jurisdiction of the House of Lords,

though their principle is very adverse to it. But it is remarkable

that, so far as the Lords themselves could allege from the rolls of

parliament, one only instance occurs between 4 Hen. IV. (1403) and 43

Eliz. (1602) where their house had entered upon any petition in the

nature of an original suit; though in that (1 Ed. IV. 1461) they had

certainly taken on them to determine a question cognisable in the

common courts of justice. For a distinction seems to have been

generally made between cases where relief might be had in the courts

below, as to which it is contended by Sir M. Hale that the Lords could

not have jurisdiction, and those where the injured party was without

remedy, either through defect of the law, or such excessive power of

the aggressor as could defy the ordinary process. During the latter

part at least of this long interval, the council and court of

star-chamber were in all their vigour, to which the intermission of

parliamentary judicature may in a great measure be ascribed. It was

owing also to the longer intervals between parliaments from the time

of Henry VI., extending sometimes to five or six years, which rendered

the redress of private wrongs by their means inconvenient and

uncertain. In 1621 and 1624, the Lords, grown bold by the general

disposition in favour of parliamentary rights, made orders without

hesitation on private petitions of an original nature. They continued

to exercise this jurisdiction in the first parliaments of Charles I.;

and in one instance, that of a riot at Banbury, even assumed the power

of punishing a misdemeanour unconnected with privilege. In the long

parliament, it may be supposed that they did not abandon this

encroachment, as it seems to have been, on the royal authority,

extending their orders both to the punishment of misdemeanours and to

the awarding of damages.[31]

The ultimate jurisdiction of the House of Lords, either by removing

into it causes commenced in the lower courts, or by writ of error

complaining of a judgment given therein, seems to have been as

ancient, and founded on the same principle of a paramount judicial

authority delegated by the Crown, as that which they exercised upon

original petitions. It is to be observed that the council or

star-chamber did not pretend to any direct jurisdiction of this

nature; no record was ever removed thither upon assignment of errors

in an inferior court. But after the first part of the fifteenth

century, there was a considerable interval, during which this

appellant jurisdiction of the Lords seems to have gone into disuse,

though probably known to be legal.[32] They began again, about 1580,

to receive writs of error from the court of king's bench; though for

forty years more the instances were by no means numerous. But the

statute passed in 1585, constituting the court of exchequer-chamber as

an intermediate tribunal of appeal between the king's bench and the

parliament, recognises the jurisdiction of the latter, that is, of the

House of Lords, in the strongest terms.[33] To this power, therefore,

of determining, in the last resort, upon writs of error from the

courts of common law, no objection could possibly be maintained.

_Their pretensions about the time of the restoration._--The

revolutionary spirit of the long parliament brought forward still

higher pretensions, and obscured all the land-marks of constitutional

privilege. As the Commons took on themselves to direct the execution

of their own orders, the Lords, afraid to be jostled out of that

equality to which they were now content to be reduced, asserted a

similar claim at the expense of the king's prerogative. They returned

to their own house on the restoration with confused notions of their

high jurisdiction, rather enhanced than abated by the humiliation they

had undergone. Thus before the king's arrival, the Commons having sent

up for their concurrence a resolution that the persons and estates of

the regicides should be seized, the upper house deemed it an

encroachment on their exclusive judicature, and changed the resolution

into "an order of the Lords on complaint of the Commons."[34] In a

conference on this subject between the two houses, the Commons denied

their lordships to possess an exclusive jurisdiction, but did not

press that matter.[35] But in fact this order was rather of a

legislative than judicial nature; nor could the Lords pretend to any

jurisdiction in cases of treason. They artfully, however, overlooked

these distinctions; and made orders almost daily in the session of

1660, trenching on the executive power and that of the inferior

courts. Not content with ordering the estates of all peers to be

restored, free from seizure by sequestration, and with all arrears of

rent, we find in their journals that they did not hesitate on petition

to stay waste on the estates of private persons, and to secure the

tithes of livings, from which ministers had been ejected, in the hands

of the churchwardens till their title could be tried.[36] They acted,

in short, as if they had a plenary authority in matters of freehold

right, where any member of their own house was a party, and in every

case as full an equitable jurisdiction as the court of chancery.

Though in the more settled state of things which ensued, these

anomalous orders do not so frequently occur, we find several

assumptions of power which show a disposition to claim as much as the

circumstances of any particular case should lead them to think

expedient for the parties, or honourable to themselves.[37]

_Resistance made by the commons._--The lower house of parliament,

which hardly reckoned itself lower in dignity, and was something more

than equal in substantial power, did not look without jealousy on

these pretensions. They demurred to a privilege asserted by the Lords

of assessing themselves in bills of direct taxation; and, having on

one occasion reluctantly permitted an amendment of that nature to

pass, took care to record their dissent from the principle by a

special entry in the journal.[38] An amendment having been introduced

into a bill for regulating the press, sent up by the Commons in the

session of 1661, which exempted the houses of peers from search for

unlicensed books, it was resolved not to agree to it; and the bill

dropped for that time.[39] Even in far more urgent circumstances,

while the parliament sat at Oxford in the year of the plague, a bill

to prevent the progress of infection was lost, because the lords

insisted that their houses should not be subjected to the general

provisions for security.[40] These ill-judged demonstrations of a

design to exempt themselves from that equal submission to the law,

which is required in all well-governed states, and had ever been

remarkable in our constitution, naturally raised a prejudice against

the Lords, both in the other house of parliament, and among the common

lawyers.

This half-suppressed jealousy soon disclosed itself in the famous

controversy between the two houses about the case of Skinner and the

East India Company. This began by a petition of the former to the

king, wherein he complained, that having gone as a merchant to the

Indian seas, at a time when there was no restriction upon that trade,

the East India Company's agents had plundered his property, taken away

his ships, and dispossessed him of an island which he had purchased

from a native prince. Conceiving that he could have no sufficient

redress in the ordinary courts of justice, he besought his sovereign

to enforce reparation by some other means. After several ineffectual

attempts by a committee of the privy council to bring about a

compromise between the parties, the king transmitted the documents to

the House of Lords, with a recommendation to do justice to the

petitioner. They proceeded accordingly to call on the East India

Company for an answer to Skinner's allegations. The company gave in

what is technically called a plea to the jurisdiction, which the house

over-ruled. The defendants then pleaded in bar, and contrived to delay

the enquiry into the facts till the next session; when the proceedings

having been renewed, and the plea to the Lords' jurisdiction again

offered, and over-ruled, judgment was finally given that the East

India Company should pay £5000 damages to Skinner.

Meantime the company had presented a petition to the House of Commons

against the proceedings of the Lords in this business. It was referred

to a committee, who had already been appointed to consider some other

cases of a like nature. They made a report, which produced resolutions

to this effect; that the Lords, in taking cognisance of an original

complaint, and that relievable in the ordinary course of law, had

acted illegally, and in a manner to deprive the subject of benefit of

the law. The Lords in return voted, "that the House of Commons

entertaining the scandalous petition of the East India Company against

the Lords' house of parliament, and their proceedings, examinations,

and votes thereupon had and made, are a breach of the privileges of

the House of Peers, and contrary to the fair correspondency which

ought to be between the two houses of parliament, and unexampled in

former times; and that the House of Peers, taking cognisance of the

cause of Thomas Skinner, merchant, a person highly oppressed and

injured in East India by the governor and company of merchants trading

thither, and over-ruling the plea of the said company, and adjudging

£5000 damages thereupon against the said governor and company, is

agreeable to the laws of the land, and well warranted by the law and

custom of parliament, and justified by many parliamentary precedents

ancient and modern."

Two conferences between the houses, according to the usage of

parliament, ensued, in order to reconcile this dispute. But it was too

material in itself, and aggravated by too much previous jealousy, for

any voluntary compromise. The precedents alleged to prove an original

jurisdiction in the peers were so thinly scattered over the records of

centuries, and so contrary to the received principle of our

constitution that questions of fact are cognisable only by a jury,

that their managers in the conferences seemed less to insist on the

general right, than on a supposed inability of the courts of law to

give adequate redress to the present plaintiff; for which the judges

had furnished some pretext on a reference as to their own competence

to afford relief, by an answer more narrow, no doubt, than would have

been rendered at the present day. And there was really more to be

said, both in reason and law, for this limited right of judicature

than for the absolute cognisance of civil suits by the Lords. But the

Commons were not inclined to allow even of such a special exception

from the principle for which they contended, and intimated that the

power of affording a remedy in a defect of the ordinary tribunals

could only reside in the whole body of the parliament.

The proceedings that followed were intemperate on both sides. The

Commons voted Skinner into custody for a breach of privilege, and

resolved that whoever should be aiding in execution of the order of

the Lords against the East India Company should be deemed a betrayer

of the liberties of the commons of England, and an infringer of the

privileges of the house. The Lords, in return, committed Sir Samuel

Barnardiston, chairman of the company, and a member of the House of

Commons, to prison, and imposed on him a fine of £500. It became

necessary for the king to stop the course of this quarrel, which was

done by successive adjournments and prorogations for fifteen months.

But on their meeting again in October 1669, the Commons proceeded

instantly to renew the dispute. It appeared that Barnardiston, on the

day of the adjournment, had been released from custody, without demand

of his fine, which by a trick rather unworthy of those who had

resorted to it, was entered as paid on the records of the exchequer.

This was a kind of victory on the side of the Commons; but it was

still more material that no steps had been taken to enforce the order

of the Lords against the East India Company. The latter sent down a

bill concerning privilege and judicature in parliament, which the

other house rejected on a second reading. They in return passed a bill

vacating the proceedings against Barnardiston, which met with a like

fate. In conclusion, the king recommended an erasure from the journals

of all that had passed on the subject, and an entire cessation; an

expedient which both houses willingly embraced, the one to secure its

victory, the other to save its honour. From this time the Lords have

tacitly abandoned all pretensions to an original jurisdiction in civil

suits.[41]

They have however been more successful in establishing a branch of

their ultimate jurisdiction, which had less to be urged for it in

respect of precedent, that of hearing appeals from courts of equity.

It is proved by Sir Matthew Hale and his editor, Mr. Hargrave, that

the Lords did not entertain petitions of appeal before the reign of

Charles I., and not perhaps unequivocally before the long

parliament.[42] They became very common from that time, though hardly

more so than original suits; and as they bore no analogy, except at

first glance, to writs of error, which come to the House of Lords by

the king's express commission under the great seal, could not well be

defended on legal grounds. But on the other hand, it was reasonable

that the vast power of the court of chancery should be subject to some

control; and though a commission of review, somewhat in the nature of

the court of delegates in ecclesiastical appeals, might have been and

had been occasionally ordered by the Crown;[43] yet if the ultimate

jurisdiction of the peerage were convenient and salutary in cases of

common law, it was difficult to assign any satisfactory reason why it

should be less so in those which are technically denominated

equitable.[44] Nor is it likely that the Commons would have disputed

this usurpation, in which the Crown had acquiesced, if the Lords had

not received appeals against members of the other house. Three

instances of this took place about the year 1675; but that of Shirley

against Sir John Fagg is the most celebrated, as having given rise to

a conflict between the two houses, as violent as that which had

occurred in the business of Skinner. It began altogether on the score

of privilege. As members of the House of Commons were exempted from

legal process during the session, by the general privilege of

parliament, they justly resented the pretension of the peers to

disregard this immunity, and compel them to appear as respondents in

cases of appeal. In these contentions neither party could evince its

superiority but at the expense of innocent persons. It was a contempt

of the one house to disobey its order, of the other to obey it. Four

counsel, who had pleaded at the bar of the Lords in one of the cases

where a member of the other house was concerned, were taken into

custody of the serjeant-at-arms by the speaker's warrant. The

gentleman usher of the black rod, by warrant of the Lords, empowering

him to call all persons necessary to his assistance, set them at

liberty. The Commons apprehended them again; and to prevent another

rescue, sent them to the Tower. The Lords despatched their usher of

the black rod to the lieutenant of the Tower, commanding him to

deliver up the said persons. He replied that they were committed by

order of the Commons, and he could not release them without their

order; just as, if the Lords were to commit any persons, he could not

release them without their Lordships' order. They addressed the king

to remove the lieutenant; but after some hesitation, he declined to

comply with their desire. In this difficulty, they had recourse,

instead of the warrant of the Lords' speaker, to a writ of habeas

corpus returnable in parliament; a proceeding not usual, but the

legality of which seems to be now admitted. The lieutenant of the

Tower, who, rather unluckily for the Lords, had taken the other side,

either out of conviction, or from a sense that the lower house were

the stronger and more formidable, instead of obeying the writ, came to

the bar of the Commons for directions. They voted, as might be

expected, that the writ was contrary to law and the privileges of

their house. But in this ferment of two jealous and exasperated

assemblies, it was highly necessary, as on the former occasion, for

the king to interpose by a prorogation for three months. This period,

however, not being sufficient to allay their animosity, the House of

Peers took up again the appeal of Shirley in their next session. Fresh

votes and orders of equal intemperance on both sides ensued, till the

king by the long prorogation, from November 1675 to February 1677, put

an end the dispute. The particular appeal of Shirley was never

revived; but the Lords continued without objection to exercise their

general jurisdiction over appeals from courts of equity.[45] The

learned editor of Hale's Treatise on the Jurisdiction of the Lords

expresses some degree of surprise at the Commons' acquiescence in what

they had treated as an usurpation. But it is evident from the whole

course of proceeding that it was the breach of privilege in citing

their own members to appear, which excited their indignation. It was

but incidentally that they observed in a conference, "that the Commons

cannot find, by Magna Charta, or by any other law or ancient custom of

parliament, that your lordships have any jurisdiction in cases of

appeal from courts of equity." They afterwards, indeed, resolved that

there lies no appeal to the judicature of the Lords in parliament from

courts of equity;[46] and came ultimately, as their wrath increased,

to a vote "that whosoever shall solicit, plead, or prosecute any

appeal against any commoner of England, from any court of equity,

before the House of Lords, shall be deemed and taken a betrayer of the

rights and liberties of the commons of England, and shall be proceeded

against accordingly;"[47] which vote the Lords resolved next day to be

"illegal, unparliamentary, and tending to a dissolution of the

government."[48] But this was evidently rather an act of hostility

arising out of the immediate quarrel than the calm assertion of a

legal principle.[49]

_Question of the exclusive right of the commons as to

money-bills._--During the interval between these two dissensions,

which the suits of Skinner and Shirley engendered, another difference

had arisen, somewhat less violently conducted, but wherein both houses

considered their essential privileges at stake. This concerned the

long agitated question of the right of the Lords to make alterations

in money-bills. Though I cannot but think the importance of their

exclusive privilege has been rather exaggerated by the House of

Commons, it deserves attention; more especially as the embers of that

fire may not be so wholly extinguished as never again to show some

traces of its heat.

In our earliest parliamentary records, the Lords and Commons, summoned

in a great measure for the sake of relieving the king's necessities,

appear to have made their several grants of supply without mutual

communication, and the latter generally in a higher proportion than

the former. These were not in the form of laws, nor did they obtain

any formal assent from the king, to whom they were tendered in written

indentures, entered afterwards on the roll of parliament. The latest

instance of such distinct grants from the two houses, as far as I can

judge from the rolls, is in the 18th year of Edward III.[50] But in

the 22nd year of that reign the Commons alone granted three fifteenths

of their goods, in such a manner as to show beyond a doubt that the

tax was to be levied solely upon themselves.[51] After this time, the

Lords and Commons are jointly recited in the rolls to have granted

them, sometimes, as it is expressed, upon deliberation had together.

In one case it is said that the Lords, with one assent, and afterwards

the Commons, granted a subsidy on exported wool.[52] A change of

language is observable in Richard II.'s reign, when the Commons are

recited to grant with the assent of the Lords; and this seems to

indicate, not only that in practice the vote used to originate with

the Commons, but that their proportion, at least, of the tax being far

greater than that of the Lords (especially in the usual impositions on

wool and skins, which ostensibly fell on the exporting merchant), the

grant was to be deemed mainly theirs, subject only to the assent of

the other house of parliament. This is, however, so explicitly

asserted in a remarkable passage on the roll of 9 Hen. IV., without

any apparent denial, that it cannot be called in question by any

one.[53] The language of the rolls continues to be the same in the

following reigns; the Commons are the granting, the Lords the

consenting power. It is even said by the court of king's bench, in a

year-book of Edward IV., that a grant of money by the Commons would be

binding without assent of the Lords; meaning of course as to commoners

only, though the position seems a little questionable even with the

limitation. I have been almost led to suspect, by considering this

remarkable exclusive privilege of originating grants of money to the

Crown, as well as by the language of some passages in the rolls of

parliament relating to them, that no part of the direct taxes, the

tenths or fifteenths of goods, were assessed upon the Lords temporal

and spiritual, except where they are positively mentioned, which is

frequently the case. But as I do not remember to have seen this

anywhere asserted by those who have turned their attention to the

antiquities of our constitution, it may possibly be an unfounded

surmise, or at least only applicable to the earlier period of our

parliamentary records.

These grants continued to be made as before, by the consent indeed of

the houses of parliament, but not as legislative enactments. Most of

the few instances where they appear among the statutes are where some

condition is annexed, or some relief of grievances so interwoven with

them that they make part of a new law.[54] In the reign of Henry VII.

they are occasionally inserted among the statutes, though still

without any enacting words.[55] In that of Henry VIII. the form is

rather more legislative, and they are said to be enacted by the

authority of parliament, though the king's name is not often mentioned

till about the conclusion of his reign;[56] after which a sense of the

necessity of expressing his legislative authority seems to have led to

its introduction in some part or other of the bill.[57] The Lords and

Commons are sometimes both said to grant, but more frequently the

latter with the former's assent, as continued to be the case through

the reigns of Elizabeth and James I. In the first parliament of

Charles I., the Commons began to omit the name of the Lords in the

preamble of bills of supply, reciting the grant as if wholly their

own, but in the enacting words adopted the customary form of statutes.

This, though once remonstrated against by the upper house, has

continued ever since to be the practice.

The originating power as to taxation was thus indubitably placed in

the House of Commons; nor did any controversy arise upon that ground.

But they maintained also that the Lords could not make any amendment

whatever in bills sent up to them for imposing, directly or

indirectly, a charge upon the people. There seems no proof that any

difference between the two houses on this score had arisen before the

restoration; and in the convention parliament the Lords made several

alterations in undoubted money-bills, to which the Commons did not

object. But in 1661, the Lords having sent down a bill for paving the

streets of Westminster, to which they desired the concurrence of the

Commons, the latter, on reading the bill a first time, "observing that

it went to lay a charge upon the people, and conceiving that it was a

privilege inherent in their house that bills of that nature should be

first considered there," laid it aside, and caused another to be

brought in.[58] When this was sent up to the Lords, they inserted a

clause, to which the Commons disagreed, as contrary to their

privileges, because the people cannot have any tax or charge imposed

upon them, but originally by the House of Commons. The Lords resolved

this assertion of the Commons to be against the inherent privileges of

the House of Peers; and mentioned one precedent of a similar bill in

the reign of Mary, and two in that of Elizabeth, which had begun with

them. The present bill was defeated by the unwillingness of either

party to recede; but for a few years after, though the point in

question was still agitated, instances occur where the Commons

suffered amendments in what were now considered as money-bills to

pass, and others where the Lords receded from them rather than defeat

the proposed measure. In April 1671, however, the Lords having reduced

the amount of an imposition on sugar, it was resolved by the other

house, "That in all aids given to the king by the Commons, the rate or

tax ought not to be altered by the Lords."[59] This brought on several

conferences between the houses, wherein the limits of the exclusive

privilege claimed by the Commons were discussed with considerable

ability, and less heat than in the disputes concerning judicature;

but, as I cannot help thinking, with a decided advantage both as to

precedent and constitutional analogy on the side of the peers.[60] If

the Commons, as in early times, had merely granted their own money, it

would be reasonable that their house should have, as it claimed to

have, "a fundamental right as to the matter, the measure, and the

time." But that the peers, subject to the same burthens as the rest of

the community, and possessing no trifling proportion of the general

wealth, should have no other alternative than to refuse the necessary

supplies of the revenue, or to have their exact proportion, with all

qualifications and circumstances attending their grant, presented to

them unalterably by the other house of parliament, was an anomaly that

could hardly rest on any other ground of defence than such a series of

precedents as establish a constitutional usage; while, in fact, it

could not be made out that such a pretension was ever advanced by the

Commons before the present parliament. In the short parliament of

April 1640, the Lords having sent down a message, requesting the other

house to give precedency in the business they were about to matter of

supply, it had been highly resented, as an infringement of their

privilege; and Mr. Pym was appointed to represent their complaint at a

conference. Yet even then, in the fervour of that critical period, the

boldest advocate of popular privileges who could have been selected

was content to assert that the matter of subsidy and supply ought to

begin in the House of Commons.[61]

There seems to be still less pretext for the great extension given by

the Commons to their acknowledged privilege of originating bills of

supply. The principle was well adapted to that earlier period when

security against misgovernment could only be obtained by the vigilant

jealousy and uncompromising firmness of the Commons. They came to the

grant of subsidy with real or feigned reluctance, as the stipulated

price of redress of grievances. They considered the Lords, generally

speaking, as too intimately united with the king's ordinary council,

which indeed sat with them, and had perhaps, as late as Edward III.'s

time, a deliberative voice. They knew the influence or intimidating

ascendency of the peers over many of their own members. It may be

doubted in fact whether the lower house shook off, absolutely and

permanently, all sense of subordination, or at least deference, to the

upper, till about the close of the reign of Elizabeth. But I must

confess that, in applying the wise and ancient maxim, that the Commons

alone can empower the king to levy the people's money, to a private

bill for lighting and cleansing a certain town, or cutting dikes in a

fen, to local and limited assessments for local benefit (as to which

the Crown has no manner of interest, nor has anything to do with the

collection), there was more disposition shown to make encroachments

than to guard against those of others. They began soon after the

revolution to introduce a still more extraordinary construction of

their privilege, not receiving from the House of Lords any bill which

imposes a pecuniary penalty on offenders, nor permitting them to alter

the application of such as have been imposed below.[62]

These restrictions upon the other house of parliament, however, are

now become, in their own estimation, the standing privileges of the

Commons. Several instances have occurred during the last century,

though not, I believe, very lately, when bills, chiefly of a private

nature, have been unanimously rejected, and even thrown over the table

by the speaker, because they contained some provision in which the

Lords had trespassed upon these alleged rights.[63] They are, as may

be supposed, very differently regarded in the neighbouring chamber.

The Lords have never acknowledged any further privilege than that of

originating bills of supply. But the good sense of both parties, and

of an enlightened nation, who must witness and judge of their

disputes, as well as the natural desire of the government to prevent

in the outset any altercation that must impede the course of its

measures, have rendered this little jealousy unproductive of those

animosities which it seemed so happily contrived to excite. The one

house, without admitting the alleged privilege, has generally been

cautious not to give a pretext for eagerly asserting it; and the

other, on the trifling occasions where it has seemed, perhaps

unintentionally, to be infringed, has commonly resorted to the

moderate course of passing a fresh bill to the same effect, after

satisfying its dignity by rejecting the first.

_State of the upper house under the Tudors and Stuarts._--It may not

be improper to choose the present occasion for a summary view of the

constitution of both houses of parliament under the lines of Tudor and

Stuart. Of their earlier history the reader may find a brief, and not,

I believe, very incorrect account in a work to which this is a kind of

sequel.

_Augmentation of the temporal lords._--The number of temporal lords

summoned by writ to the parliaments of the house of Plantagenet was

exceedingly various; nor was anything more common in the fourteenth

century than to omit those who had previously sat in person, and still

more their descendants. They were rather less numerous for this

reason, under the line of Lancaster, when the practice of summoning

those who were not hereditary peers did not so much prevail as in the

preceding reigns. Fifty-three names however appear in the parliament

of 1454, the last held before the commencement of the great contest

between York and Lancaster. In this troublous period of above thirty

years, if the whole reign of Edward IV. is to be included, the chiefs

of many powerful families lost their lives in the field or on the

scaffold, and their honours perished with them by attainder. New

families, adherents of the victorious party, rose in their place; and

sometimes an attainder was reversed by favour; so that the peers of

Edward's reign were not much fewer than the number I have mentioned.

Henry VII. summoned but twenty-nine to his first parliament, including

some whose attainder had never been judicially reversed; a plain act

of violence, like his previous usurpation of the Crown. In his

subsequent parliaments the peerage was increased by fresh creations,

but never much exceeded forty. The greatest number summoned by Henry

VIII. was fifty-one; which continued to be nearly the average in the

two next reigns, and was very little augmented by Elizabeth. James,

in his thoughtless profusion of favour, made so many new creations,

that eighty-two peers sat in his first parliament, and ninety-six in

his latest. From a similar facility in granting so cheap a reward of

service, and in some measure perhaps from the policy of counteracting

a spirit of opposition to the court, which many of the Lords had begun

to manifest, Charles called no less than one hundred and seventeen

peers to the parliament of 1628, and one hundred and nineteen to that

of November 1640. Many of these honours were sold by both these

princes; a disgraceful and dangerous practice, unheard of in earlier

times, by which the princely peerage of England might have been

gradually levelled with the herd of foreign nobility. This has

occasionally, though rarely, been suspected since the restoration. In

the parliament of 1661, we find one hundred and thirty-nine lords

summoned.

The spiritual lords, who, though forming another estate in parliament,

have always been so united with the temporality that the suffrages of

both upon every question are told indistinctly and numerically,

composed in general, before the reformation, a majority of the upper

house; though there was far more irregularity in the summonses of the

mitred abbots and priors than those of the barons. But by the

surrender and dissolution of the monasteries, about thirty-six votes

of the clergy on an average were withdrawn from the parliament; a loss

ill compensated to them by the creation of five new bishoprics. Thus,

the number of the temporal peers being continually augmented, while

that of the prelates was confined to twenty-six, the direct influence

of the church on the legislature has become comparatively small; and

that of the Crown, which, by the pernicious system of translations and

other means, is generally powerful with the episcopal bench, has, in

this respect at least, undergone some diminution. It is easy to

perceive from this view of the case that the destruction of the

monasteries, as they then stood, was looked upon as an indispensable

preliminary to the reformation; no peaceable efforts towards which

could have been effectual without altering the relative proportions of

the spiritual and temporal aristocracy.

The House of Lords, during this period of the sixteenth and

seventeenth centuries, were not supine in rendering their collective

and individual rights independent of the Crown. It became a

fundamental principle, according indeed to ancient authority, though

not strictly observed in ruder times, that every peer of full age is

entitled to his writ of summons at the beginning of a parliament, and

that the house will not proceed on business, if any one is denied

it.[64] The privilege of voting by proxy, which was originally by

special permission of the king, became absolute, though subject to

such limitations as the house itself may impose. The writ of summons,

which, as I have observed, had in earlier ages (if usage is to

determine that which can rest on nothing but usage) given only a right

of sitting in the parliament for which it issued, was held, about the

end of Elizabeth's reign, by a construction founded on later usage, to

convey an inheritable peerage, which was afterwards adjudged to

descend upon heirs general, female as well as male; an extension which

sometimes raises intricate questions of descent, and though no

materially bad consequences have flowed from it, is perhaps one of the

blemishes in the constitution of parliament. Doubts whether a peerage

could be surrendered to the king, and whether a territorial honour, of

which hardly any remain, could be alienated along with the land on

which it depended, were determined in the manner most favourable to

the dignity of the aristocracy. They obtained also an important

privilege; first of recording their dissent in the journals of the

house, and afterwards of inserting the grounds of it. Instances of the

former occur not unfrequently at the period of the reformation; but

the latter practice was little known before the long parliament. A

right that Cato or Phocion would have prized, though it may sometimes

have been frivolously or factiously exercised!

_State of the commons._--The House of Commons, from the earliest

records of its regular existence in the 23rd year of Edward I.,

consisted of seventy-four knights, or representatives from all the

counties of England, except Chester, Durham, and Monmouth, and of a

varying number of deputies from the cities and boroughs; sometimes in

the earliest period of representation amounting to as many as two

hundred and sixty; sometimes, by the negligence or partiality of the

sheriffs in omitting places that had formerly returned members, to not

more than two-thirds of that number. New boroughs, however, as being

grown into importance, or from some private motive, acquired the

franchise of election; and at the accession of Henry VIII. we find

two hundred and twenty-four citizens and burgesses from one hundred

and eleven towns (London sending four), none of which have since

intermitted their privilege.

_Question as to rights of election._--I must so far concur with those

whose general principles as to the theory of parliamentary reform

leave me far behind, as to profess my opinion that the change, which

appears to have taken place in the English government towards the end

of the thirteenth century, was founded upon the maxim that all who

possessed landed or movable property ought, as freemen, to be bound by

no laws, and especially by no taxation, to which they had not

consented through their representatives. If we look at the

constituents of a House of Commons under Edward I. or Edward III., and

consider the state of landed tenures and of commerce at that period,

we shall perceive that, excepting women, who have generally been

supposed capable of no political right but that of reigning, almost

every one who contributed towards the tenths and fifteenths granted by

the parliament, might have exercised the franchise of voting for those

who sat in it. Were we even to admit, that in corporate boroughs the

franchise may have been usually vested in the freemen rather than the

inhabitants, yet this distinction, so important in later ages, was of

little consequence at a time when all traders, that is all who

possessed any movable property worth assessing, belonged to the former

class. I do not pretend that no one was contributory to a subsidy, who

did not possess a vote; but that the far greater portion was levied on

those who, as freeholders or burgesses, were reckoned in law to have

been consenting to its imposition. It would be difficult probably to

name any town of the least consideration in the fourteenth and

fifteenth centuries, which did not, at some time or other, return

members to parliament. This is so much the case that if, in running

our eyes along the map, we find any sea-port, as Sunderland or

Falmouth, or any inland town, as Leeds or Birmingham, which has never

enjoyed the elective franchise, we may conclude at once that it has

emerged from obscurity since the reign of Henry VIII.[65]

Though scarce any considerable town, probably, was intentionally left

out, except by the sheriffs' partiality, it is not to be supposed that

all boroughs that made returns were considerable. Several that are

currently said to be decayed, were never much better than at present.

Some of these were the ancient demesne of the Crown; the tenants of

which not being suitors to the county courts, nor voting in the

election of knights for the shire, were, still on the same principle

of consent to public burthens, called upon to send their own

representatives. Others received the privilege along with their

charter of incorporation, in the hope that they would thrive more than

proved to be the event; and possibly, even in such early times, the

idea of obtaining influence in the Commons through the votes of their

burgesses might sometimes suggest itself.

That, amidst all this care to secure the positive right of

representation, so little provision should have been made as to its

relative efficiency, that the high-born and opulent gentry should have

been so vastly outnumbered by peddling traders, that the same number

of two should have been deemed sufficient for the counties of York and

Rutland, for Bristol and Gatton, are facts more easy to wonder at than

to explain; for, though the total ignorance of the government as to

the relative population might be perhaps a sufficient reason for not

making an attempt at equalisation, yet if the representation had been

founded on anything like a numerical principle, there would have been

no difficulty in reducing it to the proportion furnished by the books

of subsidy for each county and borough, or at least in a rude

approximation towards a more rational distribution.

Henry VIII. gave a remarkable proof that no part of the kingdom,

subject to the English laws and parliamentary burthens, ought to want

its representation, by extending the right of election to the whole of

Wales, the counties of Chester and Monmouth, and even the towns of

Berwick and Calais. It might be possible to trace the reason, why the

county of Durham was passed over. The attachment of those northern

parts to popery seems as likely as any other. Thirty-three were thus

added to the Commons. Edward VI. created fourteen boroughs, and

restored ten that had disused their privilege. Mary added twenty-one,

Elizabeth sixty, and James twenty-seven members.[66]

These accessions to the popular chamber of parliament after the reign

of Henry VIII. were by no means derived from a popular principle, such

as had influenced its earlier constitution. We may account perhaps on

this ground for the writs addressed to a very few towns, such as

Westminster. But the design of that great influx of new members from

petty boroughs, which began in the short reigns of Edward and Mary,

and continued under Elizabeth, must have been to secure the authority

of government, especially in the successive revolutions of religion.

Five towns only in Cornwall made returns at the accession of Edward

VI.; twenty-one at the death of Elizabeth. It will not be pretended

that the wretched villages, which corruption and perjury still hardly

keep from famine, were seats of commerce and industry in the sixteenth

century. But the county of Cornwall was more immediately subject to a

coercive influence, through the indefinite and oppressive jurisdiction

of the stannary court. Similar motives, if we could discover the

secrets of those governments, doubtless operated in most other cases.

A slight difficulty seems to have been raised in 1563 about the

introduction of representatives from eight new boroughs at once by

charters from the Crown, but was soon waived with the complaisance

usual in those times. Many of the towns, which had abandoned their

privilege at a time when they were compelled to the payment of daily

wages to their members during the session, were now desirous of

recovering it, when that burthen had ceased and the franchise had

become valuable. And the house, out of favour to popular rights, laid

it down in the reign of James I. as a principle, that every town,

which has at any time returned members to parliament, is entitled to a

writ as a matter of course. The speaker accordingly issued writs to

Hertford, Pomfret, Ilchester, and some other places, on their

petition. The restorations of boroughs in this manner, down to 1641,

are fifteen in number. But though the doctrine that an elective right

cannot be lost by disuse, is still current in parliament, none of the

very numerous boroughs which have ceased to enjoy that franchise since

the days of the three first Edwards, have from the restoration downwards

made any attempt at retrieving it; nor is it by any means likely that

they would be successful in the application. Charles I., whose temper

inspired him rather with a systematic abhorrence of parliaments than

with any notion of managing them by influence, created no new

boroughs. The right indeed would certainly have been disputed, however

frequently exercised. In 1673 the county and city of Durham, which had

strangely been unrepresented to so late an æra, were raised by act of

parliament to the privileges of their fellow-subjects.[67] About the

same time a charter was granted to the town of Newark, enabling it to

return two burgesses. It passed with some little objection at the

time; but four years afterwards, after two debates, it was carried on

the question, by 125 to 73, that by virtue of the charter granted to

the town of Newark, it hath right to send burgesses to serve in

parliament.[68] Notwithstanding this apparent recognition of the

king's prerogative to summon burgesses from a town not previously

represented, no later instance of its exercise has occurred; and it

would unquestionably have been resisted by the Commons, not, as is

vulgarly supposed, because the act of union with Scotland has limited

the English members to 513 (which is not the case), but upon the broad

maxims of exclusive privilege in matters relating to their own body,

which the house was become powerful enough to assert against the

Crown.

It is doubtless a problem of no inconsiderable difficulty to determine

with perfect exactness, by what class of persons the electoral franchise

in ancient boroughs was originally possessed; yet not perhaps so much

so as the carelessness of some, and the artifices of others, have

caused it to appear. The different opinions on this controverted

question may be reduced to the four following theses:--1. The original

right as enjoyed by boroughs represented in the parliaments of Edward

I., and all of later creation, where one of a different nature has not

been expressed in the charter from which they derive the privilege,

was in the inhabitant householders resident in the borough, and paying

scot and lot, under those words including local rates, and probably

general taxes. 2. The right sprang from the tenure of certain freehold

lands or burgages within the borough, and did not belong to any but

such tenants. 3. It was derived from charters of incorporation, and

belonged to the community or freemen of the corporate body. 4. It did

not extend to the generality of freemen, but was limited to the

governing part or municipal magistracy. The actual right of election,

as fixed by determinations of the House of Commons before 1772, and by

committees under the Grenville act since, is variously grounded upon

some of these four principal rules, each of which has been subject to

subordinate modifications which produce still more complication and

irregularity.

Of these propositions, the first was laid down by a celebrated

committee of the House of Commons in 1624, the chairman whereof was

Serjeant Glanville, and the members, as appears by the list in the

journals, the most eminent men, in respect of legal and

constitutional knowledge, that were ever united in such a body. It is

called by them the common-law right, and that which ought always to

obtain, where prescriptive usage to the contrary cannot be shown. But

it has met with very little favour from the House of Commons since the

restoration. The second has the authority of Lord Holt in the case of

Ashby and White, and of some other lawyers who have turned their

attention to the subject. It countenances what is called the right of

burgage tenure; the electors in boroughs of this description being

such as hold burgages or ancient tenements within the borough. The

next theory, which attaches the primary franchise to the freemen of

corporations, has on the whole been most received in modern times, if

we look either at the decisions of the proper tribunal, or the current

doctrine of lawyers. The last proposition is that of Dr. Brady, who in

a treatise of boroughs, written to serve the purposes of James II.,

though not published till after the revolution, endeavoured to settle

all elective rights on the narrowest and least popular basis. This

work gained some credit, which its perspicuity and acuteness would

deserve, if these were not disgraced by a perverse sophistry and

suppression of truth.

It does not appear at all probable that such varying and indefinite

usages, as we find in our present representation of boroughs, could

have begun simultaneously, when they were first called to parliament

by Edward I. and his two next descendants. There would have been what

may be fairly called a common-law right, even were we to admit that

some variation from it may, at the very commencement, have occurred in

particular places. The earliest writ of summons directed the sheriff

to make a return from every borough within his jurisdiction, without

any limitation to such as had obtained charters, or any rule as to the

electoral body. Charters, in fact, incorporating towns seem to have

been by no means common in the thirteenth and fourteenth centuries;

and though they grew more frequent afterwards, yet the first that gave

expressly a right of returning members to parliament was that of

Wenlock under Edward IV. These charters, it has been contended, were

incorporations of the inhabitants, and gave no power either to exclude

any of them or to admit non-resident strangers, according to the

practice of later ages. But, however this may be, it is highly

probable that the word burgess (burgensis), long before the elective

franchise or the character of a corporation existed, meant literally

the free inhabitant householder of a borough, a member of its

court-leet, and subject to its jurisdiction. We may, I believe, reject

with confidence what I have reckoned as the third proposition; namely,

that the elective franchise belonged, as of common right, to the

freemen of corporations; and still more that of Brady, which few would

be found to support at the present day.

There can, I should conceive, be little pretence for affecting to

doubt that the burgesses of Domesday-book, of the various early

records cited by Madox and others, and of the writs of summons to

Edward's parliament, were inhabitants of tenements within the borough.

But it may remain to be proved that any were entitled to the

privileges or rank of burgesses, who held less than an estate of

freehold in their possessions. The burgage-tenure, of which we read in

Littleton, was evidently freehold; and it might be doubtful whether

the lessees of dwellings for a term of years, whose interest, in

contemplation of law, is far inferior to a freehold, were looked upon

as sufficiently domiciled within the borough to obtain the appellation

of burgesses. It appears from Domesday that the burgesses, long before

any incorporation, held lands in common belonging to their town; they

had also their guild or market-house, and were entitled in some places

to tolls and customs. These permanent rights seem naturally restrained

to those who possessed an absolute property in the soil. There can

surely be no question as to mere tenants at will, liable to be removed

from their occupation at the pleasure of the lord; and it is perhaps

unnecessary to mention that the tenancy from year to year, so usually

present, is of very recent introduction. As to estates for a term of

years, even of considerable duration, they were probably not uncommon

in the time of Edward I.; yet far outnumbered, as I should conceive,

by those of a freehold nature. Whether these lessees were contributory

to the ancient local burthens of scot and lot, as well as to the

tallages exacted by the king, and tenths afterwards imposed by

parliament in respect of movable estate, it seems not easy to

determine; but if they were so, as appears more probable, it was not

only consonant to the principle, that no freeman should be liable to

taxation without the consent of his representatives, to give them a

share in the general privilege of the borough, but it may be inferred

with sufficient evidence from several records, that the privilege and

the burthen were absolutely commensurate; men having been specially

discharged from contributing to tallages, because they did not

participate in the liberties of the borough, and others being

expressly declared subject to those impositions, as the condition of

their being admitted to the rights of burgesses.[69] It might however

be conjectured that a difference of usage between those boroughs,

where the ancient exclusive rights of burgage tenants were maintained,

and those where the equitable claim of taxable inhabitants possessing

only a chattel interest received attention, might ultimately produce

those very opposite species of franchise, which we find in the scot

and lot borough, and in those of burgage-tenure. If the franchise, as

we now denominate it, passed in the thirteenth century for a burthen,

subjecting the elector to bear his part in the payment of wages to the

representative, the above conjecture will be equally applicable, by

changing the words right and claim into liability.[70]

It was according to the natural course of things, that the mayors or

bailiffs, as returning officers, with some of the principal burgesses

(especially where incorporating charters had given them a

pre-eminence), would take to themselves the advantage of serving a

courtier or neighbouring gentleman, by returning him to parliament,

and virtually exclude the general class of electors, indifferent to

public matters, and without a suspicion that their individual

suffrages could ever be worth purchase. It is certain that a seat in

the Commons was an object of ambition in the time of Edward IV., and I

have little doubt that it was so in many instances much sooner. But

there existed not the means of that splendid corruption which has

emulated the Crassi and Luculli of Rome. Even so late as 1571, Thomas

Long, a member for Westbury, confessed that he had given four pounds

to the mayor and another person for his return. The elections were

thus generally managed, not often perhaps by absolute bribery, but

through the influence of the government and of the neighbouring

aristocracy; and while the freemen of the corporation, or resident

householders, were frequently permitted, for the sake of form, to

concur in the election, there were many places where the smaller part

of the municipal body, by whatever names distinguished, acquired a

sort of prescriptive right through an usage, of which it was too late

to show the commencement.[71]

It was perceived, however, by the assertors of the popular cause under

James I. that, by this narrowing of the electoral franchise, many

boroughs were subjected to the influence of the privy council, which,

by restoring the householders to their legitimate rights, would

strengthen the interests of the country. Hence Lord Coke lays it down

in his fourth institute, that "if the king newly incorporate an

ancient borough, which before sent burgesses to parliament, and

granteth that certain selected burgesses shall make election of the

burgesses of parliament, where all the burgesses elected before, this

charter taketh not away the election of the other burgesses. And so,

if a city or borough hath power to make ordinances, they cannot make

an ordinance that a less number shall elect burgesses for the

parliament than made the election before; for free elections of

members of the high court of parliament are pro bono publico, and not

to be compared to other cases of election of mayors, bailiffs, etc.,

of corporations.[72] He adds, however, "by original grant or by

custom, a selected number of burgesses may elect and bind the

residue." This restriction was admitted by the committee over which

Glanville presided in 1624.[73] But both they and Lord Coke believed

the representation of boroughs to be from a date before what is called

legal memory, that is, the accession of Richard I. It is not easy to

reconcile their principle, that an elective right once subsisting

could not be limited by anything short of immemorial prescription,

with some of their own determinations, and still less with those which

have subsequently occurred, in favour of a restrained right of

suffrage. There seems, on the whole, great reason to be of opinion,

that where a borough is so ancient as to have sent members to

parliament before any charter of incorporation proved, or reasonably

presumed to have been granted, or where the word burgensis is used

without anything to restrain its meaning in an ancient charter, the

right of election ought to have been acknowledged either in the

resident householders paying general and local taxes, or in such of

them as possessed an estate of freehold within the borough. And

whatever may have been the primary meaning of the word burgess, it

appears consonant to the popular spirit of the English constitution

that, after the possessors of leasehold interests became so numerous

and opulent as to bear a very large share in the public burthens, they

should have enjoyed commensurate privileges; and that the resolution

of Mr. Glanville's committee in favour of what they called the

common-law right should have been far more uniformly received, and

more consistently acted upon, not merely as agreeable to modern

theories of liberty, from which some have intimated it to have

sprung, but as grounded on the primitive spirit and intention of the

law of parliament.

In the reign of Charles II. the House of Commons seems to have become

less favourable to this species of franchise. But after the

revolution, when the struggle of parties was renewed every three years

throughout the kingdom, the right of election came more continually

into question, and was treated with the grossest partiality by the

house, as subordinate to the main interests of the rival factions.

Contrary determinations for the sole purpose of serving these

interests, as each grew in its turn more powerful, frequently

occurred; and at this time the ancient right of resident householders

seems to have grown into disrepute, and given way to that of

corporations, sometimes at large, sometimes only in a limited and very

small number. A slight check was imposed on this scandalous and

systematic injustice by the act 2 G. ii. c. 2, which renders the last

determination of the House of Commons conclusive as to the right of

election.[74] But this enactment confirmed many decisions that cannot

be reconciled with any sensible rule. The same iniquity continued to

prevail in cases beyond its pale; the fall of Sir Robert Walpole from

power was reckoned to be settled, when there appeared a small majority

against him on the right of election at Chippenham, a question not

very logically connected with the merits of his administration; and

the house would to this day have gone on trampling on the franchises

of their constituents, if a statute had not been passed through the

authority and eloquence of Mr. Grenville, which has justly been known

by his name. I shall not enumerate the particular provisions of this

excellent law, which, in point of time, does not fall within the

period of my present work; it is generally acknowledged that, by

transferring the judicature in all cases of controverted elections,

from the house to a sworn committee of fifteen members, the reproach

of partiality has been a good deal lightened, though not perhaps

effaced.

FOOTNOTES:

[1] It was said in 18 Car. II. (1666) that "the king by the common law

hath a general prerogative over the printing press; so that none ought

to print a book for public use without his license." This seems,

however, to have been in the argument of counsel; but the court held

that a patent to print law-books exclusively was no monopoly. Carter's

_Reports_, 89. "Matters of state and things that concern the

government," it is said in another case, "were never left to any man's

liberty to print that would." 1 _Mod. Reps._ 258. Kennet informs us

that several complaints having been made, of Lilly's _Grammar_, the

use of which had been prescribed by the royal ecclesiastical

supremacy, it was thought proper in 1664 that a new public form of

grammar should be drawn up and _approved in convocation_, to be

enjoined by the royal authority. One was accordingly brought in by

Bishop Pearson, but the matter dropped. _Life of Charles II._ 274.

[2] We find an order of council, June 7, 1660, that the stationers'

company do seize and deliver to the secretary of state all copies of

Buchanan's _History of Scotland_, and _De Jure Regni apud Scotos_,

"which are very pernicious to monarchy, and injurious to his majesty's

blessed progenitors." Kennet's _Register_, 176. This was beginning

early.

[3] Commons' Journals, July 29, 1661.

[4] 14 Car. II. c. 33.

[5] _State Trials_, vii. 929.

[6] This declaration of the judges is recorded in the following

passage of the _London Gazette_, May 5, 1680: "This day the judges

made their report to his majesty in council, in pursuance of an order

of this board, by which they unanimously declare that his majesty may

by law prohibit the printing and publishing of all news-books and

pamphlets of news whatsoever not licensed by his majesty's authority,

as manifestly tending to the breach of the peace and disturbance of

the kingdom. Whereupon his majesty was pleased to direct a

proclamation to be prepared for the restraining the printing of

news-books and pamphlets of news without leave." Accordingly such a

proclamation appears in the _Gazette_ of May 17.

[7] _State Trials_, vii. 1127; viii. 184, 197. Even North seems to

admit that this was a stretch of power. _Examen_, 564.

[8] _State Trials_, viii. 163.

[9] It seems that these warrants, though usual, were known to be

against the law. _State Trials_, vii. 949, 956. Possibly they might

have been justified under the words of the licensing act, while that

was in force; and having been thus introduced, were not laid aside.

[10] Kennet's _Charles II._ 277.

[11] _State Trials_, vi. 837.

[12] Ralph, 297; North's _Examen_, 139; Kennet, 337. Hume of course

pretends that this proclamation would have been reckoned legal in

former times.

[13] "Sir Hugh Wyndham and others of the grand jury of Somerset were

at the last assizes bound over, by Lord Ch. J. Keeling, to appear at

the K. B. the first day of this term, to answer a misdemeanour for

finding upon a bill of murder, 'billa vera quoad manslaughter,'

against the directions of the judge. Upon their appearance they were

told by the court, being full, that it was a misdemeanour in them, for

they are not to distinguish betwixt murder and manslaughter; for it is

only the circumstance of malice which makes the difference, and that

may be implied by the law, without any fact at all, and so it lies not

in the judgment of a jury, but of the judge; that the intention of

their finding indictments is, that there might be no malicious

prosecution; and therefore, if the matter of the indictment be not

framed of malice, but is verisimilis, though it be not vera, yet it

answers their oaths to present it. Twisden said he had known petty

juries punished in my lord Chief Justice Hyde's time, for disobeying

of the judge's directions in point of law. But, because it was a

mistake in their judgments rather than any obstinacy, the court

discharged them without any fine or other attendance." Pasch. 19 Car.

2; Keeling; Ch. J. Twisden, Wyndham, Morton, justices; Hargrave MSS.

n. 339.

[14] Journals, 16th Oct. 1667.

[15] _State Trials_, vi. 967.

[16] Vaughan's _Reports_; _State Trials_, v. 999.

[17] See Hargraves' judicious observations on the province of juries.

_State Trials_, vi. 1013.

[18] Those who were confined by warrants were forced to buy their

liberty of the courtiers; "Which," says Pepys (July 7, 1667), "is a

most lamentable thing that we do professedly own that we do these

things, not for right and justice' sake, but only to gratify this or

that person about the king."

[19] _State Trials_, vi. 1189.

[20] Commons' Journals. As the titles only of these bills are entered

in the Journals, their purport cannot be stated with absolute

certainty. They might, however, I suppose, be found in some of the

offices.

[21] _Parl. Hist._ 661. It was opposed by the court.

[22] In this session (Feb. 14) a committee was appointed to inspect

the laws, and consider how the king may commit any subject by his

immediate warrant, as the law now stands, and report the same to the

house, and also how the law now stands touching commitments of persons

by the council-table. Ralph supposes (p. 255) that this gave rise to

the habeas corpus act, which is certainly not the case. The statute 16

Car. I, c. 10, seems to recognise the legality of commitments by the

king's special warrant, or by the privy council, or some, at least, of

its members singly; and I do not know whether this, with long usage,

is not sufficient to support the controverted authority of the

secretary of state. As to the privy council, it is not doubted, I

believe, that they may commit. But it has been held, even in the worst

of times, that a warrant of commitment under the king's own hand,

without seal, or the hand of any secretary, or officer of state, or

justice, is bad. 2 Jac. II. B. R. 2 Shower, 484.

[23] In the _Parliamentary History_, 845, we find a debate on the

petition of one Harrington to the Commons in 1677, who had been

committed to close custody by the council. But as his demeanour was

alleged to have been disrespectful, and the right of the council to

commit was not disputed, and especially as he seems to have been at

liberty when the debate took place, no proceedings ensued; though the

commitment had not been altogether regular. Ralph (p. 314) comments

more severely on the behaviour of the house than was necessary.

[24] 31 Car. II. c. 2.

[25] The puisne judges of the common pleas granted a habeas corpus,

against the opinion of Chief-Justice Vaughan, who denied the court to

have that power. Carter's _Reports_, 221.

[26] The court of King's Bench directed a habeas corpus to the

governor of Jersey, to bring up the body of Overton, a well-known

officer of the commonwealth, who had been confined there several

years. Siderfin's _Reports_, 386. This was in 1668, after the fall of

Clarendon, when a less despotic system was introduced.

[27] See the Lords' questions and answers of the judges in _Parl.

Hist._ xv. 898; or Bacon's _Abridgment_, tit. Habeas Corpus; also

Wilmot's _Judgments_, 81. This arose out of a case of impressment,

where the expeditious remedy of habeas corpus is eminently necessary.

[28] 56 G. III. c. 100.

[29] It was ordered 21 Jan. 1549, that the eldest son of the Earl of

Bedford should continue in the house after his father had succeeded to

the peerage. And, 9th Feb. 1575, that his son should do so, "according

to the precedent in the like case of the now earl his father." It is

worthy of notice that this determination, which, at the time, seems to

have been thought doubtful, though very unreasonably (Journals, 10th

Feb.), but which has had an influence which no one can fail to

acknowledge, in binding together the two branches of the legislature,

and in keeping alive the sympathy for public and popular rights in the

English nobility (that _sensus communis_, which the poet thought so

rare in high rank) is first recorded, and that twice over, in behalf

of a family, in whom the love of constitutional freedom has become

hereditary, and who may be justly said to have deserved, like the

Valerii at Rome, the surname of Publicolæ.

[30] The form of appointing receivers and tryers of petitions, though

intermitted during the reign of William III. was revived afterwards,

and finally not discontinued without a debate in the House of Lords,

and a division, in 1740. _Parl. Hist._ xi. 1013.

[31] Hargrave, p. 60. The proofs are in the Lords' Journals.

[32] They were very rare after the accession of Henry V.; but one

occurs in 10th Hen. VI. 1432, with which Hale's list concludes.

Hargrave's Preface to Hale, p. 7. This editor justly observes, that

the incomplete state of the votes and early journals renders the

negative proof inconclusive; though we may be fully warranted in

asserting that from Henry V. to James I. there was very little

exercise of judicial power in parliament, either civilly or

criminally.

[33] 27th Eliz. c. 8.

[34] Lords' Journals, May 18, 1660.

[35] Commons' Journals, May 22.

[36] Lords' Journals, June 4, 6, 14, 20, 22 _et alibi sæpe_. "Upon

information given that some person in the late times had carried away

goods from the house of the Earl of Northampton, leave was given to

the said earl, by his servants and agents, to make diligent and narrow

search in the dwelling-houses of certain persons, and to break open

any door or trunk that shall not be opened in obedience to the order."

June 26. The like order was made next day for the Marquis of

Winchester, the Earls of Derby and Newport, etc. A still more

extraordinary vote was passed August 16. Lord Mohun having complained

of one Keigwin, and his attorney Danby, for suing him by common

process in Michaelmas term, 1651, in breach of privilege of peerage,

the house voted that he should have damages: nothing could be more

scandalously unjust, and against the spirit of the bill of indemnity.

Three presbyterian peer protested.

[37] They resolved, in the case of the Earl of Pembroke, Jan. 30,

1678, that the single testimony of a commoner is not sufficient

against a peer.

[38] Journals, Aug. 2 and 15, 1660.

[39] _Id._ July 29, 1661.

[40] _Id._ Oct. 31, 1665.

[41] For the whole of this business, which is erased from the journals

of both houses, see _State Trials_, v. 711; _Parl. Hist._ iv. 431,

443; Hatsell's _Precedents_, iii. 336; and Hargrave's Preface to

Hale's _Jurisdiction of the Lords_, 101.

[42] Hale says, "I could never get to any precedent of greater

antiquity than 3 Car. I. nay scarce before 16 Car. I. of any such

proceeding in the Lords' house." C. 33, and see Hargrave's Preface,

53.

[43] _Id._ c. 31.

[44] It was ordered in a petition of Robert Roberts, Esq., that

directions be given to the lord chancellor that he proceed to make a

speedy decree in the court of chancery, according to equity and

justice, notwithstanding there be not any precedent in the case.

Against this Lords Mohun and Lincoln severally protested; the latter

very sensibly observing, that whereas it hath been the prudence and

care of former parliaments to set limits and bounds to the

jurisdiction of chancery, now this order of directions, which implies

a command, opens a gap to set up an arbitrary power in the chancery,

which is hereby countenanced by the House of Lords to act, not

according to the accustomed rules or former precedents of that court,

but according to his own will. Lords' Journals, 29th Nov. 1664.

[45] It was thrown out against them by the Commons in their angry

conferences about the business of Ashby and White, in 1704, but not

with any serious intention of opposition.

[46] C. J. May 30.

[47] _Id._ Nov. 19. Several divisions took place in the course of this

business, and some rather close; the court endeavouring to allay the

fire. The vote to take Sergeant Pemberton into custody for appearing

as counsel at the Lords' bar was only carried by 154 to 146, on June

1.

[48] Lords' Journals, Nov. 20.

[49] Lords' and Commons' Journals, May and November 1675; _Parl.

Hist._ 721, 791; _State Trials_, vi. 1121; Hargrave's Preface to Hale,

135; and Hale's _Treatise_, c. 33.

It may be observed, that the Lords learned a little caution in this

affair. An appeal of one Cottington from the court of delegates to

their house was rejected, by a vote that it did not properly belong to

them, Shaftesbury alone dissentient. June 17, 1678. Yet they had

asserted their right to receive appeals from inferior courts, that

there might be no failure of justice, in terms large enough to embrace

the ecclesiastical jurisdiction. May 6, 1675. And it is said that they

actually had done so in 1628. Hargrave, 53.

[50] _Parl. Hist._ ii. 148.

[51] _Id._ 200.

[52] _Id._ 300 (43 Edw. 3).

[53] _Rot. Parl._ iii. 611; _View of Middle Ages_, ii. 310.

[54] 14 E. 3, stat. 1, c. 21. This statute is remarkable for a promise

of the Lords not to assent in future to any charge beyond the old

custom, without assent of the Commons in full parliament. Stat. 2,

same year; the king promises to lay on no charge but by assent of the

Lords and Commons. 18 E. 3, stat. 2, c. 1; the Commons grant

two-fifteenths of the commonalty, and two-tenths of the cities and

boroughs. "Et en cas que notre signeur le roi passe la mer, de paier a

mesmes les tems les quinzisme et disme del second an, et nemy en autre

maniere. Issint que les deniers de ce levez soient despendus, en les

besoignes a eux monstez a cest parlement, par avis des grauntz a ce

assignez, et que les aides de la Trent soient mys en defense de

north." This is a remarkable precedent for the usage of appropriation,

which had escaped me, though I have elsewhere quoted that in 5 Rich.

2, stat. 2, c. 2 and 3. In two or three instances, we find grants of

tenths and fifteenths in the statutes, without any other matter, as 14

E. 3, stat. 1, c. 20; 27 E. 3, stat. 1, c. 4.

[55] 7 H. 7, c. 11; 12 H. 7, c. 12.

[56] I find only one exception, 5 H. 8, c. 17, which was in the now

common form: Be it enacted by the king our sovereign lord, and by the

assent, etc.

[57] In 37 H. 8, c. 25, both Lords and Commons are said to grant, and

they pray that their grant "may be ratified and confirmed by his

majesty's royal assent, so to be enacted and authorised by virtue of

this present parliament as in such cases heretofore has been

accustomed."

[58] Commons' Journals, 24, 29 July; Lords' Journals, 30 July.

[59] They expressed this with strange latitude in a resolution some

years after, that all aids and supplies to his majesty in parliament

are _the sole gift of the Commons_. _Parl. Hist._ 1005. As they did

not mean to deny that the Lords must concur in the bill, much less

that they must pay their quota, this language seems indefensible.

[60] Lords' and Commons' Journals, April 17th and 22nd, 1679; _Parl.

Hist._ iv. 480; Hatsell's _Precedents_, iii. 109, 368, 409.

In a pamphlet by Lord Anglesea, if I mistake not, entitled, "Case

stated of the Jurisdiction of the House of Lords in point of

Impositions," 1696, a vigorous and learned defence of the right of the

Lords to make alterations in money-bills, it is admitted that they

cannot increase the rates; since that would be to originate a charge

on the people, which they cannot do. But it is even said in the

year-book (33 H. 6) that if the Commons grant tonnage for four years,

and the Lords reduce the terms to two years, they need not send the

bill down again. This of course could not be supported in modern

times.

[61] _Parl. Hist._ ii. 563.

[62] The principles laid down by Hatsell are: 1. That in bills of

supply, the Lords can make no alteration but to correct verbal

mistakes. 2. That in bills, not of absolute supply, yet imposing

burthens, as turnpike acts, etc., the Lords cannot alter the quantum

of the toll, the persons to manage it, etc.; but in other clauses they

may make amendments. 3. That, where a charge may indirectly be thrown

on the people by a bill, the Commons object to the Lords making

amendments. 4. That the Lords cannot insert pecuniary penalties in a

bill, or alter those inserted by the Commons, iii. 137. He seems to

boast that the Lords during the last century have very faintly opposed

the claim of the Commons. But surely they have sometimes done so in

practice, by returning a money-bill, or what the lower house call one,

amended; and the Commons have had recourse to the evasion of throwing

out such bill and bringing in another with the amendments inserted in

it; which does not look very triumphant.

[63] The last instance mentioned by Hatsell is in 1790, when the Lords

had amended a bill for regulating Warwick gaol by changing the rate to

be imposed from the landowners to the occupiers, iii. 131. I am not at

present aware of any subsequent case, but rather suspect that such

might be found.

[64] See the case of the Earl of Arundel in parliament in 1626. In one

instance the house took notice that a writ of summons had been issued

to the Earl of Mulgrave, he being under age, and addressed the king that

he would be pleased to be sparing of writs of this nature for the future.

20th Oct. 1667. The king made an excuse that he did not know the earl

was much under age, and would be careful for the future. 29th Oct.

[65] Though the proposition in the text is, I believe, generally true,

it has occurred to me since, that there are some exceptions in the

northern parts of England; and that both Sheffield and Manchester are

among them.

[66] It is doubted by Mr. Merewether (_arguendo_) whether Edward and

Mary created so many new boroughs as appears; because the returns

under Henry VII. and Henry VIII. are lost. But the motive operated

more strongly in the latter reigns. _West Looe Case_, 80.

[67] 25 Car. 2, c. 9. A bill had passed the Commons in 1624 for the

same effect, but failed through the dissolution.

[68] Journals, 26th Feb. and 20th March 1676-7.

[69] _Madox Firma, Burgi_, p. 270 _et post_.

[70] The popular character of the elective franchise in early times

has been maintained by two writers of considerable research and

ability; Mr. Luders, _Reports of Election Cases_, and Mr. Merewether,

in his _Sketch of the History of Boroughs_ and _Report of the West

Looe Case_. The former writer has the following observations, vol. i.

p. 99: "The ancient history of boroughs does not confirm the opinion

above referred to, which Lord Chief Justice Holt delivered in the case

of Ashby _v._ White; viz. that inhabitants not incorporated cannot

send members to parliament but by prescription. For there is good

reason to believe that the elections in boroughs were in the beginning

of representation popular; yet in the reign of Edward I. there were

not perhaps thirty corporations in the kingdom. Who then elected the

members of boroughs not incorporated? Plainly, the inhabitants or

burghers [according to their tenure or situation]; for at that time

every inhabitant of a borough was called a burgess; and Hobart refers

to this usage in support of his opinion in the case of Dungannon. The

manner in which they exercised this right was the same as that in

which the inhabitants of a town, at this day, hold a right of common,

or other such privilege, which many possess who are not incorporated."

The words in brackets, which are not in the printed edition, are

inserted by the author himself in a copy bequeathed to the Inner

Temple library. The remainder of Mr. Luders's note, though too long

for this place, is very good, and successfully repels the _corporate_

theory.

[71] The following passage from Vowell's treatise, on the order of the

parliament, published in 1571, and reprinted in Holingshed's

_Chronicles of Ireland_ (vi. 345) seems to indicate that, at least in

practice, the election was in the principal or governing body of the

corporation. "The sheriff of every county, having received his writ,

ought, forthwith, to send his precepts and summons to the mayors,

bailiffs, and head officers of every city, town corporate, borough,

and such places as have been accustomed to send burgesses within his

county, that they do choose and elect among themselves two citizens

for every city, and two burgesses for every borough, according to

their old custom and usage. And these head officers ought then to

assemble themselves, _and the aldermen and common council of every

city or town_; and to make choice among themselves of two able and

sufficient men of every city or town, to serve for and in the said

parliament."

Now, if these expressions are accurate, it certainly seems that, at

this period, the great body of freemen or inhabitants were not

partakers in the exercise of their franchise. And the following

passage, if the reader will turn to it, wherein Vowell adverts to the

form of a county election, is so differently worded in respect to the

election by the freeholders at large, that we may fairly put a literal

construction upon the former. In point of fact, I have little doubt

that elections in boroughs were for the most part very closely managed

in the sixteenth century, and probably much earlier. This, however,

will not by any means decide the question of right. For we know that

in the reigns of Henry IV. and Henry V. returns for the great county

of York were made by the proxies of a few peers and a few knights; and

there is a still more anomalous case in the reign of Elizabeth, when a

Lady Packington sealed the indenture for the county of Worcester.

Carew's _Hist. of Elections_, part ii. p. 282. But no one would

pretend that the right of election was in these persons, or supposed

by any human being to be so.

The difficulty to be got over by those who defend the modern decisions

of committees is this. We know that in the reign of Edward I. more

than one hundred boroughs made returns to the writ. If most of these

were not incorporated, nor had any aldermen, capital burgesses and so

forth, by whom were the elections made? Surely by the freeholders, or

by the inhabitants. And if they were so made in the reign of Edward I.

how has the franchise been restrained afterwards?

[72] 4 Inst. 48; Glanville, pp. 53, 66. That no private agreement, or

by-law of the borough, can restrain the right of election, is laid

down in the same book. P. 17.

[73] Glanville's case of Bletchingly, p. 33.

[74] This clause in an act imposing severe penalties on bribery, was

inserted by the House of Lords with the insidious design of causing

the rejection of the whole bill; if the Commons, as might be expected,

should resent such an interference with their privileges. The ministry

accordingly endeavoured to excite this sentiment; but those who had

introduced the bill very wisely thought it better to sacrifice a point

of dignity, rather than lose so important a statute. It was, however,

only carried by two voices to agree with the amendment. _Parl. Hist._

viii. 754.

Constitutional History of England, Henry VII to George II. Volume 3 of 3 · 第 1 / 12 章