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.
EVERYMAN'S LIBRARY
EDITED BY ERNEST RHYS
HISTORY
HALLAM'S
CONSTITUTIONAL HISTORY
WITH AN INTRODUCTION BY
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VOLUME THREE
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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.