Chapter XIII (3)

[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.