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.