Chapter XIII (2)

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.