f M,f i.*j Restrain* on Religious Opinions. The first dis- tinct instance of State intervention to repress the teach- ing and spread of opinions at variance with the doctrines which the Church of England at that time held in common with the rest of Christendom, occurs in Hen. 4's reign. The writ de hceretico comburgndo ^appears to have existed in our common law from a much earlier period ; but the introduction into this country and the growth of the sect of the Lollards in the 14th century, led at the beginning of the following century to the passing of st. 2 Hen. 4, c. 15, 5 which regulated the mode of enforcing in the / ecclesiastical courts the penalty of the flames against a teacher of heretical opinions who refused to abjure them, or relapsed into them after abjuration, and ^inflicted impri- j sonment on persons favouring such teachers or keeping 8 As to this statute see below, ch. vii. 3. The People 23 heretical books in their possession. By an Act of Hen. 5's reign heretics were made amenable to the civil courts. And during the struggles of the Reformation, in the reigns of Hen. 8 and Mary, the rigour of the laws against heresy, and the severity with which they were enforced, rose to the highest point. Restriction on Printing. "With one exception, a special notice of the restrictions which have from time to time been placed upon the exercise of various trades and manufactures in this country does not fall within the scope of constitutional history. The one case which requires notice is 'that of printing, which, since its inven- tion in the 15th century, has inevitably exercised a most important influence upon the politics as well as the other affairs of all civilised nations. No sooner was the destined extent of this influence perceived than the press was throughout Europe subjected to a rigorous censorship. No writings were permitted to be published without license, and the printing of unlicensed works was visited with the severest punishments. Until the Reformation the censorship of the press was looked upon as jm eC-Cle&i- _astical affair^and Henry VIII. assumed an absolute control over it by virtue of his ecclesiastical supremacy. Aliens. Notwithstanding the privileges granted to foreign merchants by the Great Charter, the residence of aliens in England continued subject to many restrictions. Not only were aliens liable to pay a higher proportion of duties and taxes than subjects, but many statutes were from time to time passed, forbidding them to engage in manufactures or in retail trade on their own account, restricting their commerce and their employment of ser- vants and apprentices, and placing them under strict supervision. St. 32 Hen. 8, c. 16, extended their in- ability to hold land by prohibiting them from taking any 24 History of the English Institutions dwelling-house or shop on lease, and declared all previous leases to them void. Defence of the Realm. In times of public danger it became usual to issue commissions of array into the different counties for the purpose of ascertaining that the inhabitants were in a due state of military equipment. In 1485, Henry VII. followed the example of Cnut (see p. 7), and established as a royal bodyguard the yeomen of the guard, whose number, commencing with 50, ultimately reached 200. And in the following reign was founded the London Artillery Company, a voluntary association for the practice of archery. Impressment for the Navy In the reign of Eic. 2 occurs the first statutory notice of the power of 'the Crown to impress seamen for the royal navy, a power of which it is not easy to discover the origin. Its exer- cise, however, was at any rate at that period recognised as undoubtedly lawful, for 2 Eic. 2, st. 1, c. 4, inflicted penalties in case of the desertion of the seamen impressed ; and the power is sanctioned and regulated by subsequent statutes. 4. Villenage and Slavery. The causes before alluded to as tending to the extinction of villenage had before the Eef ormation operated so powerfully in that direc- tion, that in Edw. 6's reign no instance of a villein in gross was known throughout the country, and the few remain- ing villeins regardant were attached to the lands 6f the Church, or to those which had been confiscated from her in the preceding reign; the clergy and monastic orders having been careful to inculcate on the laity the peril of keeping fellow-Christians in bondage, but having refrained from carrying their precepts into practice themselves from a regard to the duty, in their eyes paramount, of main- The People 25 taining intact the possessions of the Church. That reign witnessed the first and only attempt since the Norman Conquest to create a new kind of slavery by statute. In 1547 it was enacted that a runaway servant, or idle vagabond, brought up by any person before two justices, should be adjudged slave to that person for two years, and be fed on bread and water, and compelled, by beating, chaining, or otherwise, to do any kind of work, and might have an iron ring put round his neck, arm, or leg. If he absented himself from his master for 14 days during the two years, his slavery was to become perpetual. Eunaway apprentices were condemned to be the slaves of their master for the rest of their term of service. And slavery for a limited period was also imposed on convict clerks. But this Act was repealed two years afterwards. Extinction of Feudalism. All feudal distinctions and divisions of the community were at the time of the Eeformation, together with villenage, fast disappearing. This was due in part to the abolition of the jurisdiction of the local feudal courts which accompanied the sub- jection of the whole country to the central judicature, and in part to the increased facilities for the alienation and transfer of land, which loosened the ties between lords and tenants. Further, the increase of commerce and of moveable property created a wealthy and influential class within the kingdom, who were wholly without the pale of feudal institutions, and the existence of this class could not fail to weaken the hold of those institutions upon that part of the community which was subject to them. The last occasion on which feudal tenants were summoned to render personal service was in the expedition against the Scotch in 1640. Their liability to this service was recognised by an Act of that year (16 Cha. 1, c. 28), which after laying down in the preamble that " by the 26 History of the English Institutions laws of this realm none of his Majesty's subjects ought to be impressed or compelled to go out of his country to serve as a soldier in the wars, except in case of necessity of the sudden coming in of strange enemies into the king- dom, or except they be otherwise bound by tenure of their lands and possessions," empowered justices of the peace and the mayors of municipal towns to impress soldiers to serve against the rebels in Ireland. In the same year one of the most onerous of the feudal incidents was abolished. James L, who for the purpose of raising money, sold peerages and instituted a new order of hereditary knights called baronets, to which he granted admission on pay- ment of a stated sum of money, had also revived the practice, which, with the exception of having been once resorted to by Elizabeth, had for some time become ob- solete, of requiring military tenants to receive knighthood or pay the composition instead. This practice was renewed by Charles L, who carried it out with excessive rigour. But in the first session of the Long Parliament it was enacted (16 Cha. 1, c. 20) that no one should thenceforth be compelled to receive knighthood, or to pay any fine for not doing so. Another Act of that session restrained the attempts of the king to revive the obsolete tyranny of the forest laws, and to extend them to districts which had practically long since ceased to be treated as parts of the royal forests. Billeting. There was another burden to which the people were subjected in Cha. 1's reign, not exactly feudal, but connected with the defence of the realm. This was the practice of forcibly billeting soldiers and sailors in private houses. The Petition of Eight (3 Cha. 1, c. 1), after reciting its prevalence and its illegality, prayed that the king would be pleased to remove the billeted soldiers and marines, and that the people might not be so burdened The People 27 in time to come. The assent of the king to the petition did not, however, put a stop to the practice. Fifty years later the continued practice of billeting rendered it neces- sary to pass an express enactment that no officer, military or civil, or any other person whatever, should thenceforth presume to quarter or billet any soldier upon any subject or inhabitant of the realm of any degree, quality, or pro- fession, without his consent, and that any such subject or inhabitant might lawfully refuse to admit such soldier, not- withstanding any command to the contrary (31 Cha. 2, c. 1, s. 32). Abolition of Feudal Courts. After the Bestora- tion, a decisive blow was dealt at feudalism by st. 12 Cha, 2, c. 24. That Act put an end to the Court of Wards and Liveries, and to all wardships, liveries, primer seisins, and ouster-le-mains, values of marriages, wardships, fines for alienation, escuages and aids, and other incidents of tenure by knight's service or socage tenure in capite, and converted all such tenures into free and common socage tenure. Copyhold tenure was however retained. The king's right to purveyance and pre-emption was by the same Act finally abolished. Thus was completely swept away all that was burdensome in the remnants of feudal- ism; for we cannot regard as such the surviving traces of it, some of which even now exist in many of our institu- tions, and especially in our law of landed property. Religious Penalties and Disabilities. But while the feudal distinctions were dying out, events were leading to the introduction and growth in importance of a totally different kind of distinction among the people of England. The repression of heresy as such by the civil power in preceding reigns has been already noticed. This, though really incompatible with the principles of Protestantism, was not wholly abandoned at the time of the Reformation. 28 History of the English Institutions Heretics were burnt on five occasions in the reign of Elizabeth, and twice in the following reign. But the popular compassion exhibited on the last of these occasions was so great that it was thought expedient not to carry into effect the sentence which had been passed on a third offender. And in ,1667 the writ de hceretico comburendo was at length abolished by statute. Religious opinions were, however, now taken notice of by the State in another mode. Before the Reformation, with a few inconsiderable exceptions, all the individuals of the community had pro- fessed one religious belief and belonged to one religious body, the Church of England, which was then like the Continental churches, though not to the same extent, sub- ject to the paramount authority of the Papal See; and sectaries were liable to the penalties attaching to heresy, so that there was no occasion to impose upon them any civil disabilities in addition. But when the Church of England became reformed and reconstituted in the reigns of Hen. 8 and his son and younger daughter, and when the sove- reign and the mass of the nation cast off the yoke of Rome, a certain portion of the people remained attached to the old order of things, while another portion were for making still more radical alterations in religious matters than were in fact accomplished. In those times the prac- tice of resorting to political means in order to produce religious changes in a nation was considered both proper and efficacious ; and no doubt in some cases it proved to be successful The general adoption of this practice rendered it necessary for a government, like our own, which was then looked upon as one of the mainstays of Protestantism, to protect itself against the political intrigues of its own Roman Catholic subjects, by debarring them from civil offices, the holding of which might give them an opportunity of endangering or at least harassing the The People 29 existing form of government. It is important, therefore, to bear in mind that the restrictions which were at this time placed upon Eoman Catholics and afterwards upon Protestant Nonconformists, whatever may he thought of their expediency, were imposed on political grounds, and were upon those grounds perfectly justifiable. We find, in fact, that their severity was increased or diminished in proportion to the activity or otherwise of the agents of the Papacy, and notably of the Jesuits, in intriguing against the government of the country. In the first place, the stas. 1 Eliz. c. 1, and 5 Eliz. c. 1, required the oath of supremacy, to the effect that the queen was supreme both in ecclesiastical and in temporal matters (to the former part of which a Eoman Catholic was of course unable to assent), to be taken by every lay as well as ecclesiastical officer, and every person in receipt of a salary from the crown; also by graduates of the universities and all persons in any way connected with the law. Only temporal peers were exempt, the queen being " otherwise sufficiently assured of the faith and loyalty of the temporal lords of her high court of parliament." The many acts of the same reign inflicting penalties on non-attendance at the services of the Church of England, were directed alike against Protestant and Popish Nonconformists; but it is not surprising that in the following reign the discovery of the Gunpowder Plot should have led to measures of special severity against the latter. They were made liable to forfeit all their goods and two-thirds of their . lands to the king ; were debarred from certain trades and professions, and from being executors, administrators, or guardians; and were forbidden to possess arms or ammuni- tion. Their marriage or burial, and the baptism of their children, except in the parish church, was strictly pro- hibited. And the fear of Popish tendencies being im- 3O History of the English Institutions bibed on the continent, led to a general prohibition of any children being sent abroad without special license. One reasonable enactment made at this time is still law, namely, that which, in the case of a Eoman Catholic having the patronage of a benefice, forbids him to exercise it, and gives the appointment to one of the two universities (3 Ja. 1, c. 5). During the Commonwealth Cromwell professed to allow freedom of worship to all except Papists and Prelatists, declaring " that none be compelled to con- form to the public religion, by penalties or otherwise." He extended toleration even to the Jews, who were per- mitted to return to the kingdom after having been banished I i. a B since Edw. 1's reign. But he was sometimes led, by political considerations, into severe measures against Epis- copalians whether of the Church of England or of that of Rome. After the Restoration the predominant church party indulged in stern retaliation for the treatment they had received during the Commonwealth. The Corporation 0. Act (13 Cha. 2, st. 2, c. 1) imposed the reception of the sacrament as a condition for holding any municipal office. / At the same time a new Act of Uniformity (14 Cha. 2, " c. 4) was passed, which prohibited all deviations from the . prescribed forms of prayer in churches, and obliged all persons in orders, and all schoolmasters and others engaged in tuition, to make a declaration that it was not lawful on any pretence to take up arms against the king ; that they abjured the Solemn League and Covenant; and that they c . would conform to the liturgy of the Church of England. This was followed by Acts for suppressing seditious con , i^ venticleSj which inflicted imprisonment, and upon a third conviction, seven years' transportation, on persons above the age of 16 who should be present at any religious meeting held otherwise than in accordance with the regula- tions of the Church of England (16 Cha. 2, c. 4; 22 The People 3 r 2, c. 1). The Five Mile Act (17 Cha. 2, c. 2) went further, and required all Nonconforming ministers or preachers to take an oath devised four years previously, to the effect that it was not lawful on any pretence to take up arms against the king, and that they would never attempt any alteration of the government in Church or State.. Those who did not take this oath were forbidden to come within 5 miles of any parliamentary borough. And all Nonconformists alike were declared incapable of being schoolmasters, or of teaching in schools. Finally, yjthe Test Act (25 Cha. 2, c. 2) though, as its title stated, it was primarily designed " for preventing dangers which might happen from Popish recusants," and though it was with that view actually promoted by the Protestant Dis- senters, yet, by imposing the reception of the sacrament as a requisite for holding any office civil or military, or receiving any pay from the Crown, excluded these latter as well as Roman Catholics from all public posts. And a few years later members of both houses of Parliament, as well as the royal servants, were required to subscribe a declaration against transubstantiation and the invocation of saints (30 Cha. 2, st. 2), and thus Roman Catholic peers were disabled from sitting in the House of Lords and excluded from the king's presence. The arbitrary assumption of prerogative by James IL in dispensing with these laws against Roman Catholics and Dissenters in individual in- stances, and in suspending some of their provisions alto- gether by the Declaration of Indulgence, constituted one of his chief violations of the fundamental laws of the kingdom which were formally condemned at the Revolution. Liberty of the Subject. In other respects, great advances were made during the 17th century towards securing the personal liberty of the subject against stretches of the royal prerogative or of the power of the 32 History of the English Institutions government The ^Petition of Right (3 Cha. 1, c. 1) recited that, contrary to the Great Charter and to an Act of Edw. 3, divers of the king's subjects had of late heen imprisoned without any cause shown ; and that when for their deliverance they were hrought before the king's justices by writ of habeas corpus, and their keepers com- manded to certify the causes of their detainer, no cause was shown but that they were detained by the king's special command signified by the lords of the privy council, and yet they were returned back to prison without being charged with anything to which they might make answer according to the law; and it prayed that no freeman, in any such manner as was before mentioned, should be imprisoned or detained. And in 1640 it was enacted that, if any person was thereafter committed or impri-. soned by order of any Court pretending to have the jurisdiction of the Star Chamber, or by command and warrant of the sovereign in person, or of the privy council or any of its members, he should at once on application to the judges of the King's Bench or Common Pleas have a writ of habeas corpus, directed to the person in whose cxistody he was, to bring him into court, and certify the cause of his imprisonment; and the judges should liberate, bail, or remand the prisoner according to the circum- stances (16 Cha. 1, c. 10, s. 6). The method of vindi- cating liberty by means of a writ of habeas corpus was rendered more efficacious in 1679 by st. 31 Cha. 2, c. 2, which is commonly known as the Habeas Corpus Act. This Act required that the sheriff"or other officer to whose custody any person was committed should, upon receiving a writ of habeas corpus, bring up the person before the court or judge specified in the writ, within a limited period, varying from three to twenty days accord- ing to the distance to be traversed. It directed the Lord The People 33 Chancellor, Lord Keeper, or any of the judges of the Courts of King's Bench, Common Pleas, or Exchequer, in vacation as well as in term-time, to grant a habeas corpus in all cases of detention on a criminal charge, except where the charge amounted to treason or felony, or to being accessory to a felony ; and to liberate the pri- soner, after binding him, upon his own bail and that of sureties, to appear at his trial in due course. The Act further declared that no person set at liberty upon a habeas corpus should be again imprisoned for the same offence, except by order of the court in which he was bound to appear for trial If the trial of a person com- mitted on a charge of treason or felony was unduly post- poned, he too might be discharged upon bail And persons committed to one prison were not to be removed into a different custody except by a formal writ. Writs of habeas corpus were to run and take effect in the coun- ties palatine, cinque ports, and other privileged places, and in the Channel Islands. No English subject was to be sent as a prisoner to Scotland, Ireland, or the Channel Islands, or beyond the seas, except in cases of transporta- tion after conviction for felony. Monopolies and Patents. The absolute right of the king to impose regulations on trade and commerce at his own discretion was a prerogative which had been early asserted and exercised. In Eliz.'s reign it took the form of granting to favoured individuals exclusive mono- polies of manufacturing or trading in certain articles, and became so intolerable that in 1601 the Commons obtained from Elizabeth a promise that it, as well as the practice of offenders purchasing from the sovereign dispensations from the penalties imposed on them by law, should be discontinued. This promise was renewed by James I. in 1610, but as it was not strictly observed, an Act (21 Ja. 34 History of the English Institutions 1. c. 3) was passed in 1G23, declaring all such monopolies ^and dispensations void. In the case of Ihe former7b.ow- ever, an important exception was made, which has proved the foundation of our present law as to patents. It was declared that the abolition should not extend to letters patent, granting to the first inventor of neic manufactures the privilege of sole working or making of them for a period not exceeding 14 years. Notwithstanding the statute against monopolies, Charles I. attempted to revive them by establishing chartered companies with exclusive privileges of exercising certain manufactures, as, for in- stance, making soap and starch. The odium excited by these new monopolies- was, however, so great that he judged it prudent in JL639 to revoke them all by pro- clamation. Since then the only similar privileges granted have been confined to places beyond the sea, as, for in- stance, in the cases of the East India Company and Hud- son's Bay Company. Restrictions on the Press. The protracted struggles for liberty between the.. time, .of the Eeforma- tjpn and the Revolution, effected positively nothing to- wards the emancipation of the press. The privilege of printing was in the first instances-limited to members of the Stationers Company under regulations established by the Star Chamber in Mary's reign, which restricted jhe number of presses, and ^appointed a licenser of new pub- lications; and Queen Elizabeth interdicted any printing except in London, Oxford, and Cambridge. While the Star Chamber existed, political discussion in print was repressed by all the punishments which that Court was capable of inflicting, and which included the dungeon, the pillory, mutilation, and branding. Even under its regime, however, the news-letter or newspaper sprang into existence, the earliest example of it being the The People 35 first published on May 23d. 1622. After the fall of the Star Chamber in 1 6 40^ tracts and newspapers were prodigiously multiplied, and entered hotly into the contest between the Crown and Parliament. Thus more than 30,000 political pamphlets and newspapers were issued from the press between 1640 and 1660. The Long Par- liament did not, however, affect toleration in tlie matter. It passed severe orders and ordinances in restraint of printing, and would have silenced all royalist and prela- fcical writers. In fact, John Milton stood well-nigh alone in that age in denouncing the suppression of hooks by the licenser, which he affirmed to' he the slaying of " an immortality rather than a life." 6 After the Restoration the Licensing Act of 1662, a temporary statute which was subsequently from time to time renewed, placed the entire control of printing in the Government^ confining it to London, York, and the universities, and limiting the number of master printers to 20. The Act also revived, and vested in the Secretary of State, the power of issuing general search warrants to the Government messenger of the press for the purpose of discovering and seizing alleged libels against the Government. Authors and printers of obnoxious works were, under this Act, hung, quartered, and mutilated, or exposed in the pillory and flogged, or fined and imprisoned, according to the temper of the. judges; and their productions were burnt by the common hangman. The Licensing Act was severely enforced under_James II.; but the restraint on printing was not due to its existence alone. For when in Cha. 2's reign it had been suffered to expire for a time, Chief Justice 8croggs 1 and the other eleven common law judges, de- ^clared it criininal,_at common law, to publish any public ' See Milton's Areopagitica : a speech for the liberty of unlicensed printing. 36 History of the English Institutions news, true or false, without the king's licence. This opinion was not judicially condemned till the time of Lord Camden, Chief Justice of the Common Pleas. A monoply of news being thus created, the public were left to seek intelligence in the official summary of the London Gazette. Control over the Post. Concurrently with this power over the press, the Crown exercised the right of opening and examining letters confided to its care for transmission through tiie Post-Office. Foreign letters were in early times constantly searched to detect corres- pondence with Rome and other Continental powers, and during the Long Parliament foreign mails were searched by orders of both Houses ; and Cromwell's Postage Act expressly authorised the opening of letters in order " to discover and prevent dangerous and wicked designs against the peace and welfare of the commonwealth." Charles II. interdicted by proclamation the opening of any letters except by warrant from the Secretary of State. Aliens. Notwithstanding the protection to foreigners afforded by Magna Charta, the Crown continued to claim the right of ordering them to withdraw from the realm, when it seemed expedient to do so. This right was acted upon in Eliz's. reign in 1571, 1574, and 1575, but has never been exercised since. The naturalisation of aliens was restricted in Ja. 1's reign by the requirement as a preliminary condition that they should take the oaths of allegiance and supremacy, and partake of the Lord's Supper (7 Ja 1, c. 2). Defence of the Realm. About the time of the Reformation the old office of earldorman, or military head of the shire, was revived in the lord-lieutenants, then first appointed by the crown with the same powers as had Tlie People 37 been previously given to the commissions of array (see p. 24). St. 4 & 5 Ph. & Mar. c. 2, reclassified the freemen for military purposes, and altered the kind of vms to be borne by each class; but this Act, and the enactments of the Statute of Winchester on the subject (see p. 17), were abrogated at the beginning of the follow- ing century. In 1638 an unconstitutional order in coun- cil was issued, charging the equipment of cavalry on holders of land of a certain value. The final rupture between Charles I. and the Parliament was caused by the latter passing an ordinance conferring on themselves the command of the militia, and the nomination of governors of fortresses and lord-lieutenants of counties. This illegal proceeding was expressly condemned after the Eestoration, when it was laid down that the sole supreme command of the militia, and of all the forces by sea and land, and of all forts and places of strength, was and ever had been, by the laws of England, the undoubted right of the Crown, and that neither House of Parliament could pretend to it, nor could lawfully levy any war, offensive or defensive, against the king (13 Cha. 2, st. 1, c. 6; 14 Cha. 2, c. 3). Provision was at the same time made for raising an adequate militia in the different counties, by requiring persons possessed of landed estates to furnish a number of men proportionate to the value of their property. Army and Navy. On the disbanding of the army of the Commonwealth in 1660, General Monk's foot regi- ment, called the Coldstream, and one horse regiment were retained by the king, and a third regiment was formed out of troops brought by him from Dunkirk. Thus was commenced, under the name of Guards, our present regular army. They amounted in 1662 to 5000 men, but were increased by James II. to 30,000. The regular discipline of the navy also was, shortly after the Eestoration, made 38 History of tJte English Institutions the subject of legislation ; the first Articles of War fur its regulation being established by an Act of 1661. 5. Slavery. No form of slavery had existed in Eng- land since the extinction of villenage about the close of Eliz.'s reign ; but nearly two centuries more elapsed before it was declared absolutely illegal in the country. It was, on the other hand, distinctly legalised in the colonies by acts passed in the reigns of Will. 3 and Geo. 2 ; and though in Queen Anne's reign we find ac. opinion expressed by Lord Chief Justice Holt, thai, " as soon as a negro comes into England he becomes free," and by Powell J., that "the law takes no notice of a negro," the first positive decision to that effect was the judgment of Lord Mansfield in the case of the negro Somerset, in 1772. In 1799 the freedom of the colliers and salters in Scotland, who had previously been in a state of serfdom, was finally established; and, seven years later, the Slave Trade was abolished. Religious Disabilities. The dissenters having largely assisted in bringing about the Bevolution, it was natural that their political condition should be benefited by it. Accordingly, by the Toleration Act of 1688 (1 Will. & Mar. c. 18) a concession was made to Dissenting ministers who took the oath of allegiance to the sovereign, and an oath in repudiation of the doctrine that princes excom- municated by the Pope might be deposed or murdered, together with a declaration that no foreign prince, prelate, or potentate had or ought to have any ecclesiastical or spiritual jurisdiction within the realm. The taking of these oaths was long a necessary qualification for various officae and professions in this country ; an additional oath, in abjuration of the Stuart dynasty, and stigmatising them as pretenders, being added after the close of Will. The People 39 3's reign. But by the Act just mentioned, dissenting ministers who took these oaths (or who, if Quakers, made a declaration to the like effect) and subscribed the declaration required by 30 Cha. 2, si 2 (see p. 31), and the 39 Articles (with certain stated exceptions, and with a reservation, in the case of Baptists, as to the clause on infant baptism in Art. 27), were allowed to officiate in meeting-houses with doors unlocked, and were exempted from serving on juries or in parochial or county offices; and disturbers of their worship were to be punished. Unitarians as well as Papists were, however, expressly excluded from the benefit of the Toleration Act, and the Tormer were further disabled by st. 9 "Will. 3, c. 35, from holding any ecclesiastical, civil, or military office. The toleration granted by st. 1 "Will. & Mar. c. 18, was somewhat restricted in the last four years of Anne's reign ; but it was again conceded in Geo. 1's reign. And in the following reign began the series of annual indemnity Acts, by which persons who had exercised the office or followed the professions, for which oaths or tests were required, without taking them, were exempted from the penalties incurred by so doing. These Acts, though nominally dealing only with accidental omissions, became a means of shielding deliberate evasions of the law. Marriage Law. On the other hand, a new and oppressive restriction was, in 1753, imposed on Dissenters by Lord Hardwicke's Marriage Act, which was designed for preventing clandestine marriages. They had pre- viously been allowed to be married in their own places of worship; but under that Act the marriages of all persons except Jews and Quakers were required to be solemnised in a parish church, by ministers of the Establishment, and according to its rituaL Roman Catholics. As might have been expected 4O History of the English Institutions after the conduct of James II. and his advisers, the laws against Roman Catholics were at the Revolution made more severe. The Act 30 Cha. 2, st. 2, which had been in- tended to be only temporary, was continued in force against them ; they were declared incapable of purchas- - ing or inheriting lands; with a few specified exceptions, - they were to be banished from London and Westminster ; and within ten miles of those cities were to keep no horses above the value of 5, nor arms. Moreover, a Popish priest was to be punished for exercising his func- tions by perpetual imprisonment. These severe laws were never thoroughly carried out, notwithstanding that the vigoroii3 execution of them was enforced by royaj^ ^proclamation in Queen Anne's reign, by Act of Parlia- ment after the rebellion of 1715, and again by royal pro- clamation after that of 1745. Progress of Toleration. In proportion as the appre- hensions of political danger from those who were di<*- affected towards the Established Church passed away, measures for the relief of their disabilities were intro- duced. Thus in 1779 Protestants who declared their belief in the Scriptures were relieved from the necessity of subscribing the 39 Articles in order to have the benefit of the Toleration Act, and were enabled to keep schools and teach. Nor was the relaxation of the law entirely confined to Protestant Dissenters. An Act was passed, in 1778, and another in 1791, by which various penalties on Roman Catholics were remitted in the case of those who took the oath of allegiance and acknowledged the king's temporal supremacy peers who did so being relieved from the banishment from the king's presence inflicted by 30 Cha. 2, st. 2, and their worship was permitted under certain restrictions. These measures, however, did not become law without considerable difficulty, and the passing The People 41 of the Act of 1778 led to an agitation for its repeal, which in 1780 caused the disturbances in London known as the Lord George Gordon Eiots. Meanwhile the political disa- bilities of the Eoman Catholics remained, though, in 1801,_ an increasing difficulty was thrown in the way of their con- tinuance by the union of Great Britain with Ireland, where the Eomish religion prevailed. After that event Mr Pitt and his colleagues were of opinion that Eoman Catholics might be safely admitted to office, and to the privilege of sitting in Parliament; and that Dissenters should at the same time be relieved from civil disabilities. Mr Pitt also projected the idea of attaching the Eoman Catholic clergy to the State, by making them dependent upon the public funds for a part of their provision and subject to State superintendence, for which purpose the Irish Eoman Catholic bishops had consented to allow the crown a veto on their nomination. But George III., was irrecon- cilably opposed to any concessions of the kind, and the difference of opinion between him and his prime minister on the subject led to the resignation of the latter. The question, however, continued to be agitated, and occasioned the fall of another ministry, that of Lord Grenville, in 1807. Four years later the king became permanently in- disposed, and during the regency considerable advances were made in the removal of religious restrictions. In 1811, freedom of worship was practically, though not by any legislative enactment, conceded to Eoman Catholic soldiers. It was agreed among the members of Lord Liverpool's administration, on taking office in 1812, that Eoman Catholic emancipation should be an open ques- tion. In that year an Act was passed which rendered it unnecessary for persons officiating in certified meet- ing-houses to take the oaths and make the declaration, unless required to do so by a justice of the peace; and in 42 History of the English Institutions the following session the disabilities under which Unita- rians laboured were removed. In 1817, the Military and Naval Officers' Oath Act virtually opened all ranks in the army and navy to Roman Catholics and Dissenters. At length, towards the close of Geo. 4's reign, throughout the whole of which the question had been annually con- tested in Parliament, an Act repealing the Test and Cor- poration Acts and the Roman Catholic Relief Act, were car- ried, the one in 1828 and the other in 1829. The former (9 Geo. 4, c. 17) abolished the taking of the Lord's supper as a test for any of the offices or situations for which it , had previously been required. The latter (10 Geo. 4, c. 7), while it continued the incapacity of Roman Catholics to act as regent, or to be Lord Chancellor or Lord Keeper, or to hold certain positions in Scotland and Ireland, abolished in all other cases the necessity of making the declaration against transubstantiation and the invocation of saints, and permitted Roman Catholics to vote at par- liamentary elections and sit in either House of Parliament, and to hold civil and military offices, on taking the oath of allegiance, with a repudiation of the doctrine that princes excommunicated by the Pope might be deposed or murdered. The Act contained stringent provisions for regulating the residence of Jesuits and members of other male religious orders of the Church of Rome then within the kingdom, and forbad, with certain exceptions, under penalty of banishment, the future ingress of any such persons or the admission of any person within the king- dom into those orders. These restrictive provisions have, however, not been enforced, and are practically a dead letter. In 1832 an Act was passed placing Roman Catholics, in respect of their schools, charities, and places of worship, and the persons employed about them, on the same footing as Protestant Dissenters. TJte People 43 Liberty of the Subject. The passing of the Habeas Corpus Act did not secure for the personal liberty of Englishmen complete protection from irregular interference on the part of the Government. In the first place, the Act itself was frequently suspended during the first few years after the Eevolution. Nor can we wonder that it should have been so during the rebellions of 1715 and 1745. At the time of the American war of independence, the king was empowered to secure persons suspected of high treason committed in America or on the high seas, or of piracy; and in 1794 the political excitement occasioned by the French Eevolution and the troubles on the continent was considered sufficient to warrant another temporary sus- pension of the Act. This suspension was continued by periodical renewals till 1801, when the termination of the suspension was accompanied by an Act of Indemnity to all persons who since 1793 had been concerned in the apprehension of persons suspected of high treason. The last occasion of the suspension of the Habeas Corpus Act iii Great Britain was in 1817; but it has since been more than once suspended in Ireland. General "Warrants. Besides, however, the suspen- sion of the Habeas Corpus Act, another mode of inter- ference with the liberty of the subject was practised by the Government in the early part of the 18th century. When an offence had been committed against the Govern- ment, general warrants were issued for the apprehension, not of individuals specified by name, but of any persons whom the public officers might, on investigating the matter, suspect of having been concerned in it. The last case in which the practice was resorted to was upon the publication of No. 45 of the North Briton, written by the celebrated John Wilkes, and containing a bitter attack upon the Government. A general warrant was issued for 44 History of tJie English Institutions the apprehension of all persons concerned in the author- ship, printing, and publication of it, under which 49 persons, including Wilkes himself, were arrested on sus- picion and committed. "VVilkes, being a member of the House of Commons, was released by a writ of habeas corpus, and actions were immediately brought by him against the Under-Secretary of State, and also, under his directions, by the committed printers against the mes- sengers who had arrested them. In the course of these latter actions, Lord Mansfteld and the other judges of the King's Bench pronounced the warrant illegal, declaring that no degree of antiquity could give sanction to a usage bad in itself (Money v. Leach, 1 W. Blackst. 555). This decision gave a death-blow to general war- rants, notwithstanding the refusal of the Lords in the fol- lowing year (A.D. 1 766) to concur in a declaratory bill in con- demnation of them, which had been passed in the Commons. Revenue Laws. But while liberty was thus vindi- cated in one direction, considerable infringements were inflicted upon it in another, by the increasing severity of the revenue laws; especially in the department of excise, not only through the powers given to the excise officers, for the purpose of preventing frauds, of entering and searching, in many cases by night as well as by day, the houses of dealers in exciseable goods, but also through the summary method of procedure against alleged offenders before commissioners of excise or justices of the peace, without a jury. And persons punished by fines were, like others who owed debts to the crown, subject to life- long imprisonment in case of failure to pay. Debtors. The liability just mentioned was in truth only in keeping with the hardships of the general law of debtor and creditor which prevailed at this time. A debtor, at any time after proceedings had been com- The People 45 menced against him by a creditor, real or pretended, and before the debt was legally proved, was liable to be arrested on mesne process? as it was called, and thrown into prison, where he remained until the cause was tried, unless he could find sufficient bail. By Acts of Geo. 1 and Geo. 3 arrest on mesne process was restricted to the case of debts exceeding 10, and this limit was after- wards raised to 15, and ultimately to 20. But after a debt, however small, was proved against a person, he was liable to imprisonment in the Fleet or Marshalsea prison until payment. The horrors of these prisons wero so great as to lead in 1772 to the establishment of a charitable society, called the Thatched House Society, for purchasing the liberty of poor debtors detained there, by payment of their debts. So trifling were the amounts for which the majority were suffering incarceration, that the Society, in twenty years, were able to release 12,590 by an average payment of 45s. per head. Temporary Acts for the relief of Insolvent Debtors were passed from time to time in Queen Anne's reign, and again in the early part of Geo. 3's reign; but it was not till 1813 that in- solvents were placed under the jurisdiction of a special Court, and became entitled to seek discharge on render- ing a true account of all their debts and property a mea- sure which led to the liberation of 50,000 debtors within the succeeding 13 years. A tremendous power of impri- sonment was still wielded by the Court of Chancery, as a punishment for contempt or failure to perform its decrees, the result in some cases of obstinacy, but in others of mere poverty and inability. In the early part of the present century several cases occurred of persons who, failing to purge their contempt, died in prison after a confinement of upwards of 30 years. 7 See Index and Glossary. 46 History of the English Institutions Political Bights. The Declaration of Rights at the time of the Revolution (ratified by the Bill of Rights, 1 Will. & Mar., sess. 2, c. 2), went beyond a mere establish- ment of personal liberty. The right of Protestant subjects to have arms for their defence, suitable to their conditions and as allowed by law, was asserted, by way of condemna- tion of the conduct of James II. in having caused several good subjects to be disarmed, while Papists were both armed and employed contrary to the law. Again, inasmuch as that monarch had committed and prosecuted the seven bishops for petitioning him that they might be excused from concurring in the dispensing and suspending powers assumed by him, the Declaration asserted that subjects had a right to petition the king, and that all commitments and prosecutions for such petitioning were illegal The practice of putting a pressure upon the executive otherwise than through the medium of Parliament, and of endeavouring to influence Parliament itself on particular subjects by means of petitions, public meetings, and political agitation, may almost be said to date from the 18th century. It is true that the right of petitioning Parliament for the redress of per- sonal and local grievances had existed from the earliest time, and political petitions had been presented to the Long Parliament, which had encouraged or punished the petitioners according as their sentiments agreed or were at variance with its own opinions. But an Act of 1661 had prohibited petitions to the king or Parliament for altera- tions of matters established by law in Church or State, and it was not till after the Revolution that the practice of petitioning Parliament on matters of general political interest became usual In 1701 the Commons voted the Kentish petition scandalous, insolent, and seditious, tend- ing to destroy the constitution of Parliament, and to sub- vert the established government of the realm ; and they The People 47 committed five of the petitioners to prison till the end of the session. This petition had implored them to tender bills of supply to the king, and enable him to assist his allies before it should be too late. Several petitions were presented in 1716 against the septennial bill; and in 1721, praying for justice on the directors of the South Sea Company, after the bursting of the bubble. And in 1753 the city of London presented a petition against the bill for the naturalisation of the Jews, which however met with some animadversion in the House. The peti- tions in 1779 for reform in Parliament, and the petitions for the abolition of the slave trade in 1787, attained a number far in excess of what had ever been previously known ; and those against the slave trade exercised a considerable influence upon Parliament. The practice which prevailed in the House of Commons at that time, and down to a recent date, of allowing discussions on any petitions which might be presented to have precedence over the matters set down for consideration, however im- portant, proved exceedingly inconvenient when towards the end of Geo. 3's reign petitions became enormously multiplied. With regard to petitions against bills im- posing duties or taxes, it had early become a settled rule that they should not be received. But even on this subject public meetings and agitations might be brought to bear; and an extensive resort to these methods forced Sir R Walpole to withdraw his excise scheme in 1733. The repeal of the Act for the naturalisation of the Jews was produced in a similar way in 1754, and the riots of the Spitalfields silk weavers in 1765 led to an Act prohibiting the importation of foreign silks. In no long time political agitation became reduced to a system, by the establishment of societies, such as the Protestant Association under the presidency of Lord George 48 History of the English Institutions Gordon, and the Association for the abolition of the slave trade in 1787. Upon the outbreak of the French Revolution, several democratic and revolutionary associa- tions, called corresponding societies, were formed in England. Although the acquittal of Home Tooke and other leading members of these societies in 1794 proved that their proceedings did not go to the length of treason, their existence was deemed incompatible with the public safety. Accordingly in December 1795 an Act was passed for the prevention of seditious meetings, which prohibited under severe penalties the holding of meetings of more than 50 persons (except county meetings and other meetings re- cognised by the law), for deliberating on any public griev- ance, or on any matter or thing relating to any trade, manufacture, business or profession, or upon any matter in Church or State, except under certain stringent condi- tions. The same Act declared lecture and debating rooms to be disorderly places, unless held under a license for one year from the justices at quarter sessions, which they were empowered at any time to revoke. These provi- sions as to lecture rooms, were repeated in 1799, when all the corresponding societies were absolutely sup- pressed (39 Geo. 3, c. 79). Meanwhile voluntary associa- tions were, on the other hand, established to assist the government in repressing sedition. The outrages of the Luddites in the manufacturing districts (A.D. 1811-1814) arose from the prevailing distress, and had no political significance; but in 1817 it was deemed necessary to renew the measure of 1795 against seditious meetings. The Act thei> passed (57 Geo. 3, c. 19), the material parts of which, like those of the Act of 1799, are still law, contains a clause prohibiting the meeting of more than 50 persons, or the convening of such a meeting, in any square or street in Westminster within one mile of The People 49 Westminster Hall for the purpose of considering or pre- paring an address or petition to the king or regent, or to both or either of the Houses of Parliament, for the altera- tion of matters in Church or State, during the sitting of Parliament or of any of the Courts at Westminster HalL The Six Acts. In addition to the measures just noticed, the state of the country towards the end of 1819 occasioned the passing of . what were known as the Six Acts. The first of these (60 Geo. 3 & 1 Geo. 4, c. 1), which is still law, prohibited the training of persons to the use of arms, and the exercise of them in military evolutions under the penalty of transportation or impri- sonment on the persons training, and of fine and imprison- ment on those trained. The second (c. 2), which was only a temporary Act, and has expired, authorised justices of the peace, in certain disturbed northern and midland counties, and any others which should thereafter be de- clared by proclamation in council to be in a disturbed state, to seize and detain any arms collected or kept for purposes dangerous to the public peace. The object of the third (c. 4) was the prevention of delay in the admin- istration of justice in cases of misdemeanour. The fourth (c. 6, " for more effectually preventing seditious meetings and assemblies ") which was to continue in force for five .years, contained provisions very similar to those of the Act of 1795. The remaining two will be noticed here- after (see pp. 50, 53). Owing partly to these measures, and partly to an improved spirit among the people, the reign of Geo. 4 was not disquieted, at least in England, by the holding of seditious meetings. But the power of political agitation made itself triumphantly felt in procuring the passing of the Reform Act at the commencement of the next reign. Liberty of the Press. After the Revolution the 5O History of the English Institutions Commons refused to renew the Licensing Act, which accordingly_expired in 1695. But two distinct methods were employed by the Government for restraining the free expression of opinion through the press : first, the )/ stamp duty on newspapers ; and secondly, the law of a jjbeL Newspapers assumed their present form, combining intelligence with political discussion, in the reign of Anne ; and the Daily Courant. the first daily paper, was started rJ in 1709. "When during that reign the press became an instrument of party, the dominant party exerted itself to repress the publications which took the side of the oppo- sition. Proposals were even made for reviving the | * Licensing Act ; but the stamp duty on newspapers and advertisements was devised instead, avowedly for the pur- pose of repressing libels. This policy being found effectual in limiting the circulation of cheap papers, was carried further in subsequent reigns. The newspaper stamp was gradually raised tojfourpencej and was eventually extended, by st. 60 Geo. 3 & 1 Geo. 4,. c. 9 (the last of the Six Acts), J;o cheap political tracts published periodically. The advertisement duty was also increased during the reign of Geo. jj. But a far more important engine in the hands of the Government for restraining political discus- J sion existed in the law oi_libel. This law was rigorously enforced in the first two reigns after the Eevolution. Under Geo. 1 and Geo. 2 the press generally enjoyed a greater amount of toleration, owing, not to a diminution of its influence, which on the contrary was yearly increas- ing, but in great part to the fact that Sir Robert Walpole was personally indifferent to its attacks, and avowed his contempt for political writers of all parties. At the com- mencement of the reign of Geo. 3, a sudden advance in the freedom of discussion occasioned a renewal of the con- flict between it and the. Government The king's unpo The People 5 1 pular minister, Lord Bute, was the subject of furious attack, the lead in which was taken by the North Briton*,- conducted by Wilkes. Contrary to the practice which had previously been followed, even by the Annual Register, of avoiding the use of names and giving merely the initials of ministers and others in treating of domestic events, this paper assailed the foremost statesmen by name, whilst its insinuations touched even the king him- self. On the appearance, in April_1763. of No. 45 of the North Briton, commenting upon the king's speech at the prorogation, and upon the unpopular peace recently ^ o concluded, a general warrant was issued for the discovery and arrest of the authors and printers ; and an information for libel was filed against Wilkes in the King's Bench, in which a verdict was obtained (Rex v. Wilkes, 4 Burr. 2527, 2574). The illegality of this general warrant for the apprehension of individuals has been already noticed. About the same time (A.D. 1765), Lord Camden, as Chief Justice of the Common Pleas, decided in the case of Entick v. Carrington (2 Wils. 275), that a Secretary of State had no power to issue a general search warrant for the discovery and seizure of a person's books and papers. It was true that many such warrants had been issued since the Eevolution, but he wholly denied their legality. The practice had originated in the proceedings of the Star Chamber. After the abolition of that court, it had been revived and authorised by the Licensing Act of Cha. 2, in the person of the Secretary of State; but its con- tinuance, afterjhe expiration of that Act, was altogether unjustifiable. ,_ The further inequitable measures taken by the Government against Wilkes raised a burst of public feeling in his favour, and blinded the people to the justice of the verdict and sentence in the King's Bench against him. The mode of procedure in cases of State libel was 52 History of the English Institutions also calculated to render the Government prosecutions unpopular. On an information by the Attorney General, 4 the_accused was at once arraigned without any previous finding of a grand jury, such as preceded ordinary criminal trials. Moreover, contrary to the presumption which prevailed in other criminal cases, a^ publisher was held 7 ^ aiminally answerable for the actions of his servants, unless it was proved that he was neither privy nor assenting to the publication of the libel And the judges decided that exculpatory evidence on behalf of the publisher was fc jnadmissible, holding the publication of a libel by a pub- lisher's servant to be proof of his criminality. Lord Mans- field further laid down that it was thejDrovince of the judge t> , alone to decide as to the criminality of the libel, thereby removing this question from the province of the jury, who were merely called upon to determine as to the fact of its publication. The frequency of Government pro- secutions for libel, and the tendency of the judges to adopt an unfavourable construction of the language com- plained of, induced Mr Fox, in 179L to bring in a bill, similar in terms to one for the introduction of which leave had been refused twenty years previously. This bill pro- vided that on a trial or information for libel the jury might give a general verdict on the whole matter, and should not be directed to find the defendant guilty merely on proof of the publication of the alleged libel by him, "and of the sense ascribed to it in the indictment or infor- mation. The bill passed the Commons, but was lost in the Lords. It however became law in the following 'I session (32 Geo. 3, c. 60). In the course of JT79JI a royal proclamation was issued, warning the people against wicked and seditious writings, and commanding magis- strates to discover the authors, printers, and promulgators of such writings. Similar proclamations had been issued The People 53 in the reigns of Anjie and Geo_l; and on this occasion, though denounced by Fox and the opposition, it met with the approval of both Houses of Parliament, and was followed by numerous prosecutions of publishers. On the other hand, t ^demands of Napoleon, who, as First Consul, in 1802, after the peace of Amiens, irritated by the strictures of English newspapers on French affairs, required that certain uncon- stitutional restraints should be placed upon them. One libeller of the French government was however tried and convicted under the existing law, and only escaped punish- ment through the renewal of hostilities. Meanwhile the repression of libels against the home Government con- tinued. In 1808 power was given to the judges of the King's Bench to commit or hold to bail persons charged \\i;h publishing libels, as well as with other offences, before indictment or information. In jj>17 Lord fSid- mouth sent a circular letter to the lord-lieutenants of counties, requesting them to^ communicate to the justices at quarter sessions the opinion of the law officers of the crown, that a justice might issue a warrant to appre- hend any person charged on oath with the publication of a blasphemous or seditious libel, and compel him to give bail to answer the charge; and directing that^ sellers of pamphlets or tracts should be considered as subject to the Pedlars' Act, and accordingly liable to punishment if they sold without a license. Two years later, the fifth of the ~Six Acts (60 Geo. 3 & 1 Geo. 4, c. 8, " for the more effec- tual prevention and punishment of blasphemous and sedi- tious libels"), provided that on verdict or judgment by default for composing, printing, or publishing any blasphe- mous or seditious libel^ the seizure and detention might be ordered of all copies of the libel found in the possession of the convicted person or any other person specified in 54 History of the English Institutions the order ; and on a second conviction, the person might either be condemned to suffer the punishment for high misdemeanours, or bejbanishe be submitted for the approval of the Home Secretary, and were to bo, laid before Parliament at tin- earliest opportunity. The duration of this board was after- wards from time to time extended till 1847, when it was "* superseded by a board, consisting of the Lord-President of the Privy Council, Lord Privy Seal, Home Secretary, and Chancellor of the Exchequer for the time being, as well as of other commissioners appointed by the crown, one of whom was to be the president of the board, and was after 1849 a member of the ministry, and after 1859 of the cabinej. . This board, to which the title of " Poor Law Board" was afterwards given, was originally estab- Local Government 113 lished for five years, but by subsequent Acts was pro- longed until 1871, when its powers were transferred to the local government board (see p. 118). By the Act ,/ of 1834, and subsequent Acts, the board was autho- "*/g~/'i rised tnjyqw'ra t.hp. p.rp.ction and enlargement of work- housgSi into which the able-bodied paupers should be obliged to enter ; jo consolidate several parishes a. into 92_Ji5i^^itih^ common worj^iousej. under the management of a joint board of guardians, consisting of the resident justices as ex officio members, and of other per- sons elected by the rate-payers and owners of property in the different parishes ; to dissolve or alter the_ limits_of . 3* unions ] an( l t direct that in any single parish _the poor law should be administered by a board of guardians, con- 24-> stituted in a similar manner to the board of guardians of an union. At the election of guardians owners of property ' -^^'^us^ere to have the same number and proportion of votes as *->, /, ,g /^provided by st. 58 Geo. 3, c. 69 (see. p. 102), and ratepayers were to have one, two, or three votes, according as they were rated under 200, between that sum and 400, or above 400. Wherever a board of gujtrdians was appointed they were to be the sole dispensers of relief, except only that an overseer might give it in case of urgent necessity, and justices might order outdoor relief to the aged and infirm, and medical relief. Masters of workhouses, assistant overseers, and other paid relieving officers of unions and parishes were to be removable by the poor law board, who were also empowered to appoint inspectors to visit workhouses and attend meetings of guardians. The Act of 1834 provided for a proper audit it' the accounts of the overseers; and to assist them and the churchwardens in levying the poor-rate the appointment of collectors and assistant overseers has been authorised. Ey an Act of 1836 (6 & 7 Will 4, 1 14 History of the English Institutions c. 96), the power of deciding on complaints by individuals against the amount of the rate levied upon them was in the first instance vested in the justices in petty sessions, who were to hold quarterly special sessions for the pur- pose ; but an appeal was permitted from their decision to the quarter sessions. In any union formed by the board the parishes were to contribute to a common fund for the erection and maintenance of the union workhouse, in a proportion calculated upon an average of the annual amount spent by each parish in poor relief during the three years preceding the formation of the union; but each parish was to remain separately chargeable for the maintenance of its own poor, whether relieved in or out i- of the workhouse. The beneficial effects of the Act of > 1834 are shown in the fact, that while relief was in con- sequence better administered, and the really deserving poor better cared for, the annual expenditure for the relief of the poor was in three years reduced to the_xiejnt of threjjmillion3 J _ J .With the great increase that has since taken place in the population and aggregate wealth of the country, it has now risen to nearly the same figure as that at which it stood before the Act of 1834. Though this of course represents a far less heavy burden on the resources of the country than it did then, there is no doubt still room for improvement in the difficult subject of the administration of poor relief. Highways. The subject of highways occupied the attention of the reformed Parliament in the same year as that of municipal corporations. By st. 5 & 6 Will 4, c. 50, provisions were made for the annual elec- tion of unpaid or paid surveyors of highways by the vestry of every parish which maintained its own highways. Power was given to the county justices at quarter sessions, or special petty sessions, upon the Local Government 115 application of a parish vestry to constitute two or more parishes into a highway district, and to select a surveyor of highways for the district out of persons nominated to them by the different parishes for the purpose. The Act also authorised in parishes with a population exceeding 5000, the appointment of a highway board, consisting of from five to twenty resident ratepaying householders, who should act as surveyors of highways for the parish, and might appoint an assistant surveyor, clerk, and treasurer. Surveyors of highways were to make up annual accounts, and lay them before their parish vestry, and before the justices of the division, who were to hold annually at least eight special petty sessions for the pur- poses of the Act, and were invested with many powers and duties in reference to highways. The old statute duty for the repair of highways was abolished, but the ratepayers keeping horses were empowered to agree to apportion among themselves the labour of carrying materials for the purpose, for which they were to be paid after a rate fixed at the special sessions. Since the Act of 1835 the subject of the local management of highways has much increased in importance, owing to the gradual abolition of turnpike trusts and consequent transfer of those roads to the highway authorities, a process still in progress: and in 1862 an Act was passed empowering the justices of a county to divide it into highway districts under the management of highway boards, consisting of the county justices residing in the district and of way- wardens elected annually by the parishes within the district Public Health. Besides the police districts, the poor law unions, and highway districts already mentioned, certain further divisions of the county have been made in recent times for particular purposes. Both before and 1 1 6 History of the English Institutions since 1832, numerous local Acts have been passed, consti- tuting large towns and their immediate neighbourhoods and other places into districts for specific purposes, such as public waterworks, docks, and harbours, under the regulation of elected and responsible boards. In 1847. the general provisions usually contained in town improve- ment Acts were consolidated into one Act, which provided for the exercise by the commissioners, trustees, or other authority appointed by the local Act, of divers powers respecting the appointment of a surveyor and inspector of nuisances and officer of health, the maintaining of sewers and drains, the paving, repair, and cleaning of the streets, the prevention of nuisances and other matters, and the levying of rates to defray the expenses incurred. In 1848 the first step was taken towards the general establishment of a local organisation throughout the country for preserving and promoting the health of the people. An Act of that year (11 & 12 Viet. c. 63), estab- lished for five years a General Board of Health, consist- ing of the First Commissioner of Woods and Forests as president, and two other persons appointed by the Crown, with power to appoint clerks and officers and superintending inspectors. The board were authorised, in their discretion, where a certain proportion of the ratepayers in any place petitioned to that effect, or where the annual death rate was above 23 per 1000, to direct a preliminary inquiry into the sanitary condition of the place, and in case the results of the inquiry justified such a course, to order all or any of the provisions of the Act to apply to the place in question. In any district to which the Act was ap- plied a local board of health was to be constituted. This board was, in the case of municipal boroughs, to be the borough council, and elsewhere was to consist of substan- tial householders of the district (the number being fixed by Local Government 117 the general board), who were to hold office for three years, so that one-third of the board should retire every year, and were to be elected by the ratepayers of the district, who were to vote by signed voting papers, and were to have from one to six votes in the election, according to the value of their rated property. The local boards might appoint surveyors, inspectors of nuisances, medical officers of health, and other officers. Various duties and powers were reposed in them as to maintaining sewers, regulating the erection of buildings, cleansing the streets, removing nuisances, and as to other matters connected with public health. Wherever a local board was formed, they were to be the surveyors of highways within their district. They were empowered to make bye laws, which, however, were not to come into force till approved by the Home Secretary ; and the consent of the general board was by the Act made necessary to many of their proceedings. The expenses incurred by them were to be defrayed by rates levied on the same persons and in the same propor- tions as the poor-rate, an appeal to the quarter sessions being permitted against the J:ate. They were also em- powered to borrow money on the security of the rates. The General Board of Health was continued in existence till 1858, when its powers were transferred to the Privy Council, and in the same year the Public Health Act of 1848 was amended by The Local Government Act 1858 (21 & 22 Viet. c. 98), which allowed the councils in boroughs, the improvement commissioners in places under the jurisdiction of a board of improvement commis- sioners, and in other places a meeting of owners and ratepayers, to resolve on the adoption of the Act and the consequent constitution of a local board. Instead of carrying out the principle of local boards of health throughout the country, the legislature, when 1 1 8 History of the English Institutions in 1855 it was deemed necessary to make further pro- vision for the removal of nuisances and prevention of disease, constituted for the purpose, in places where there was no available local authority under any previous Act, a nuisances removal committee, consisting of the surveyor of highways ex officio, and of other members chosen annually by the parish vestry. The expenses incurred were, however, to be defrayed not by a new rate, but out of one of the existing local rates. The Sewers Act of 1833, while regulating the powers of commissioners of sewers, did not alter the districts for which they were appointed under the Act of Hen. 8 (see p. 90) ; but the Land Drainage Act of 1861 authorised commissions of sewers to be issued for inland as well as maritime districts, and permitted the establishment of drainage districts, with elected drainage boards, who, as respects those districts, were to supersede the commis sioners ; and ample powers, including that of levying rates, were given to the commissioners and boards. In 1871 and 1872, the first steps were taken towards simplifying the management of local affairs, particularly in respect of sanitary matters, by reducing the number of the authorities charged with the duty of attending to them. In 1871, st. 34 & 35 Viet. c. 70, reciting that it was expedient to concentrate in one department of the government the supervision of the laws relating to the public health, the relief of the poor, and local govern- ment, abolished the Poor Law Board, and established in its place a board, to be called the Local Government Board, consisting of a president, appointed by and holding office during the pleasure of the Crown, and of the Presi- dent of the Privy Council, all the principal Secretaries of State, the Lord Privy Seal, and the Chancellor of the Exchequer. Its members being all ministers, its com- Local Government 119 position is entirely altered on a change of ministry. It is empowered, with the sanction of the Treasury, to appoint secretaries, assistant secretaries, inspectors, clerks, and other officers. To it are transferred not only all the powers and duties of the Poor Law Board, but also those of the Home Secretary with reference to the registration of births deaths and marriages, public health, returns of local taxation, drainage, improvement of towns and kindred matters, and those of the Privy Council with reference to vaccination and the prevention of disease. The Public Health Act of the next session (35 & 36 Viet. c. 79) has further transferred to the new board the powers of the Home Secretary and the Board of Trade respecting highways and turnpike roads, bridges, metro- politan water works, and various other heads of local administration. The Act of 1872 has also entirely reconsti- tuted the various sanitary authorities. The whole country is now divided into sanitary districts ; boroughs, and any districts formed under a previous improvement Act and local government districts, being constituted urban sanitary districts; while in other parts of the country the poor law unions are constituted rural sanitary districts. The sanitary authority of the district is the municipal council, the improvement commissioners, the local board, or the board of guardians as the case may be ; and to it are intrusted all powers previously vested in the local board, nuisance authority, sewer authority, or local authority under any former Acts. Each sanitary authority is to appoint a medical officer of health ; and the rural authorities are also to appoint inspectors of nuisances, clerks, treasurers, and other necessary officers. The rural authorities may at any time delegate their powers for the current year to a committee composed of some of their own members ; and may in any parishes within their 1 20 History of the English Institutions districts form parochial committees, composed in like manner, with or without the addition of competent rate- payers of the parish. The expenses of the urban sanitary authorities are to be defrayed as directed by the Local Government Acts, where those Acts are in force, and else- where out of the borough fund or borough rate, or out of the rate leviable by the Improvement Commissioners, as the case may be ; and those of the rural sanitary authorities are to be defrayed in part out of the poor-rate of the con- stituent parishes, according to their rateable value, and in part by a separate rate levied on the parish or drainage district, for the particular benefit of which an outlay may may have been incurred. Provision is made for the appoint- ment by the Local Government Board of special sanitary authorities in ports, and for altering the boundaries of districts, converting a rural into an urban sanitary district, and uniting two or more districts into one, under a joint board, on application by the district authority. The Local Government Board is also intrusted with the extraordinary power, on a like application, of repealing or altering, with certain few exceptions, any local Acts on sanitary matters which may be in force in any district. A further Act on the subject was passed in 1874. Metropolis. The present local government of the metropolis was organised in 1855. The affairs of each of the metropolitan parishes (exclusive of those in the city) are now managed by a body of vestrymen propor- tionate in number to the population of the parish, and consisting of substantial ratepayers, who are elected by the ratepayers of the parish, or, where the parish is large and divided into wards, by the ratepayers of the different wards ; a certain number of vestrymen being assigned to each ward according to its size. Auditors of accounts are also elected annually for each parish or ward. Some of L ocal Government 1 2 1 the parishes are grouped into districts, for each of which there is a board of works composed of members elected by the parochial vestries of the districts. Besides these, there is a Metropolitan Board of Works, composed of members elected by the council of the city of London, by the district boards, and by the vestries of parishes not included in any district. The members of the Metro- politan Board, district boards, and vestries, unless elected to supply an intermediate vacancy, hold office for three years, and one-third of each of these bodies goes out of office annually. The Metropolitan Board is intrusted with the manage- ment of the main drainage of the metropolis, and with the power of making various improvements, and of con- trolling the action of the district boards and vestries, and is authorised to levy metropolitan rates to defray its expenditure. To the district boards, and the vestries of parishes not included in a district, is committed the branch, drainage, and the general control over the buildings, streets, water supply, lighting, and sanitary arrangements of their district or parish, with power to levy local rates to meet the requisite expenses. Education. The subject of education, which was originally dealt with exclusively by the central executive, has by recent legislation been brought within the domain of local administration. The matter was first taken in hand by the State in 1834, when a small grant was made by Parliament to aid in building school-houses. The fund was to be distributed by the Treasury, and was to be appropriated, in part to Church Schools through the medium of the National Society, and in part to the schools supported by the British and Foreign Schools Society, in which the religious teaching was of no dis- tinct denominational character. In 1839 Lord Mel- 122 History of the English Institutions bourne's Government vested the management of the annual education grant in a committee of the Privy Council, who administered it in aid of schools erected and supported in part by voluntary contributions. Owing to the liberality with which these latter were given, this theoretically imperfect scheme provided to a very toler- able extent for the education of the poor; but in 1870 it was deemed necessary to supplement it by more direct legislation. While the semi- voluntary semi-State-supported system has been left to go on as before, the Elementary Education Act of that year has established by its side a local organisation to supply its deficiencies. The metro- polis, the boroughs, and rural parishes are constituted school districts. In every district there is to be provided sufficient accommodation in public elementary schools (including those supported wholly or in part by volun- tary efforts) for all the children of the district for -whose elementary education provision is not otherwise made. A school board is established in the metropolis, and in every other school district in which the committee of the Privy Council on Education, or, as it is called, the Education Department, authorise its establishment ; which they are empowered to do if, after an inquiry and due warning, they find a deficiency of elementary school accommoda- tion in the district, or if an application is made to them for the purpose by the council in case of a borough, or elsewhere by the ratepayers. The department have power to unite two or more school districts into one, or to make one district contribute towards elementary education in another district. The Act of 1870 limited the term of office of members of school boards to three years, at the expiration of which there was to be a new election. The details of the election were left to be settled almost entirely by the Education Department; but it was en- Local Government 123 acted that in the case of the metropolis members should be elected to represent certain specified divisions, and that the novel practice of cumulative voting should be employed,' that is to say, each voter should have as many votes as there were members to be elected in his division, and might give them all to one candidate or distribute them among the candidates as he should think fit. The Education Department extended cumulative voting to the election of borough school boards, and while in these it prescribed the use of signed voting papers, it intro- duced into the elections for the London School Board, except in the city of London, the additional novelty of secret voting. The electors were to be in boroughs the burgesses, in the city of London the persons entitled to elect the Common Council, and elsewhere in the metropolis the body of ratepayers. The School Boards for London and for many of the larger towns were elected at the close of 1870. The boards are to erect and maintain sufficient schools; they may accept the transfer (if made to them by the managers) of schools hitherto supported voluntarily, and may pay the fees of children of indigent parents at voluntarily supported schools. 2 They may also make bye-laws rendering it com- pulsory on parents to send their - children between 5 and 13 years of age to school, unless prevented by good cause. Their expenses are defrayed by the school fees, and the share of the Parliamentary grant which their schools receive; and the deficiency is made up out of the local rates, upon the security of which the board may borrow money for the erection of school buildings. 2 St. 18 & 19 Viet. c. 34. (Denison's Act) had already authorised guardians to assist persons receiving out-door relief in the education of their children. But this Act had practically remained a dead letter. 1 24 History of the English Institutions Where a school board neglects its duty the Education Department may supersede it by temporarily themselves appointing a new board, or may at once dissolve the board, and direct a new election. The Act of 1870 provided that the Parliamentary grant should be given in aid of voluntary and board schools alike, but should in no case exceed the amount of the income of the school derived from voluntary con- tributions, school fees, or other sources. It required that no denominational religious teaching should be given in board schools, and that in them, as well as in other schools receiving the Parliamentary grant, religious ob- servances and instructions should be confined to the beginning or end of school, and no child should be re- quired to attend any religious observance or instruction objected to by the parents; and it at the same time dis- continued the examination in religious subjects by the Government Inspectors which had been previously held. By an Act of 1873, amending the Act of 1870, the granting of out-door relief to poor persons is made condi- tional upon their sending their children to school ; and guardians are required to furnish them with the means of doing so. By the same Act, the method of secret voting, prescribed by the Ballot Act of 1872 (see p. 175), is extended to the elections of all school boards. PART II. Constituents of tlje Central CHAPTER IV. THE KING. 1. Origin of Royalty. Although the kingly office was not at the time unknown among the Teutonic tribes on the Continent, the various bands of Angles, Jutes, and Saxons appear to have settled in this country under the leadership of a heretoga as chief military commander, and an ealdorman as highest civil magistrate; the same indi- vidual in many cases holding both offices. Very soon, however, owing perhaps to the increase of dignity and power which would accrue to the leader from the very act of conquest, we find the heads of the principal tribes assuming the title of king. As the name seems to imply, 1 the individual holding this position was from the first looked upon as the representative of the whole nation, 1 " Cyning, by contraction king, is probably closely connected with the word cyn or kin. . . . The king is representative of the race [or kin], the embodiment of it in its national being ; the child of his people, and not their father." Freeman's " Norman Conqiiest," i. 82. Others, however, like Carlyle (see " Heroes and Hero-Worship," Lects. i., vi.), connect the word, the German form of which is konig, with "can" (Germ, konnen), and understand it to mean the canning or able man. 126 History of the English Institutions and the process of his elevation to the dignity, and his duties and powers when holding it, were in accordance with this idea. In Teutonic communities the possession of the highest office of the State in the first instance depended, as did that of property in land, on the will of the community at large, who assigned the office to a particular indi- vidual for his life, with the power of revoking the gift at any time for misconduct. But the idea of some- thing more than this seems to have been very early attached to the title and dignity of king. 2 The possession of this office was looked upon as conferring a right which was more than merely personal, and did not altogether cease with death; but was transmissible to the king's descendants or nearest of kin, and subsequently even became liable to be disposed of by his testament. The feeling of reverence with which the office was regarded, is shown by the prevalent tradition that the royal family was descended, as among the early Greeks, from the national gods. The same feeling was expressed and perpetuated by the solemnities with which the ceremony of coronation was attended, and particularly the use, in Christian times, of the anointing oil. Pre-Norman Kings. From the first settlement of the Angles and Saxons in Britain, down to the accession of William the Conqueror, a combination of the elective and hereditary principles regulated the succession to the throne of the most powerful kingdom in the country. The extent to which the hereditary principle grew, is seen from the fact that persons of royal blood received as such the special title of ^Etheling. And we, in fact, find that from the establishment of the kingdom of "Wessex by 2 Tac. Germ. c. 7. Reges ex nobilitate, duces ex virtute sumunt. The King 127 Cerdic in 519, until within fifty years of the Norman conquest, the West Saxon crown first, and then the im- perial English crown, was always worn by his descendants. After the intrusion of three monarchs of the Danish royal family, it reverted once more to his race, to be transferred for one brief year to a stranger in blood, and then to pass to a successful invader. 3 But during all this time that crown was never placed on the head of any one, whether a descendant of Cerdic, or, like Harold, a claimant under the will of the preceding king, or a Danish or Norman conqueror, unless his accession had been previously sanc- tioned by the Witenagemot, or general council of the nation. The granting or withholding of this sanction was a vital matter; not a foregone conclusion, as was the second election by the clergy and people, who, during the coronation ceremony, responded by affirmative acclama- tions to the demand whether they would accept the pro- posed individual as their king. The exercise of the power of election by the Witenagemot enabled a minority to be averted by the choice of a brother of the deceased king instead of his infant child. It was thus that the great Alfred obtained the throne. In consequence of this, we find only two instances and those immediately following each other, and owing to the same circumstances of minors being raised to the English throne before the Con- quest. Upon the death of Eadgar, in 975, leaving two sons, aged thirteen and seven years respectively, there was no near male kinsman of full age who could be chosen to succeed, nor any man of commanding pre-eminence in the nation in whose favour the hereditary principle could be 8 In the person of Henry II., through his mother Matilda, the crown was restored to a descendant of Cerdic in the female line, and has ever since been worn by individuals having the blood of the West Saxon king in their veins. This, however, is obviously accidental, and is not due to the hereditary principle in the succession. 128 History of the English Institutions set aside, as it was later in the case of Harold. Accord- ingly Eadward, the eldest son of Eadgar, was chosen king, though not without a dispute whether his younger brother ^Ethebed should not be preferred to him; and upon his murder three years later, that brother, though then only about eleven years old, was accepted as his successor. The Witan also possessed the right of depos- ing the king, a right which they asserted in the cases of Sigeberht of Wessex (A.D. 755) and^thelred II. (A.D. 1013), whom they restored to the throne in the following year. In one instance they took part in the settlement during the lifetime of the king of the subsequent succession, for they confirmed the will of ^Ethelwulf, which affected to dispose of his regal dignities among his sons. The same king also procured his youngest son Alfred to be anointed king by the Pope during his life. The order of succession prescribed in the royal testament was not, however, im- plicitly observed; nor did the premature coronation of .Alfred avail to place him on the throne before his elder brothers. On the other hand, on the death of Eadward the Confessor, the Witan followed his last wishes respect- ing the succession, by choosing, as king, Harold, to whom he had upon his deathbed committed the kingdom. - 2. Early Norman Kings. At the Norman Conquest the due succession to the crown suffered a violent inter- ruption; but in the accession to the throne of the mem- bers of the new royal family, we find that the hereditary principle, though great stress is always laid upon it, is yet controlled, as before, by other considerations, among which that of electioji_ continues to hold a prominent place. After King Harold had fallen on the field of battle, and the English Witan had found it impossible to sustain their choice of Eadgar ^Etheling as his successor, they, a The King 1 29 few weeks later, practically revoked that choice by send- ing an invitation to William to ascend the vacant throne. It was only after this invitation, and after the ceremony of coronation had been performed in the old English form, when the unanimous voice of the assembled people accepted him as their king, that William assumed the regal dignity. Upon his death his second son Eufus, with no shadow of hereditary right, succeeded, not so much by virtue of his father's arbitrary bequest, as by the consent _of_the nobility of the land, and of the Archbishop Lan- franc, who possessed and exercised the power of perform- ing over him the solemn rite of coronation. His successor, Henry I., owed the crown to the choice of the barons and prelates assembled at Winchester, supported by the mass of the people there, a choice confirmed a few days after- wards by the acclamations of assent at his coronation in Westminster Abbey. It was upon this title of election that he as well as the next king. Stephen, relied 4 ; and John's right to the throne dependedupon the same title. To form an estimate of the degree of weight which a previous settlement by the king for the time being, with the consent of the great council of the nation, was con- sidered to carry, we may adduce, on the one hand, Henry L's unsuccessful endeavour to secure by that means the succession of his daughter Matilda and her son Henry; and, on the other, the effectual arrangement made in Stephen's reign in favour of Henry, which led to the un- resisted accession of the latter upon Stephen's death. The importance attached to the solemn act of corona- tion itself, with the rite of anointing which formed part of it, is indicated (L) by the desire of Stephen that his son 4 Henry styles himself, " Ego nutu Dei a clero et a populo Anglioe electus." And Stephen, "Ego Stephanus Dei gratia assensu cleri et populi in regem Auglorum electus." 1 30 History of the English Institutions Eustace should during his lifetime be anointed by the Archbishop of Canterbury, whose refusal to comply with it was visited by banishment from the country; (ii.) by the fact that Henry II. procured the coronation of his eldest son, whom, however, he outlived; and, (iii.) by the hurried performance of the ceremony over Henry III., when at the age of nine years he was left heir to the throne by the death of his father John. Until Edward L, the reigns of our kings, both before anoTafter the Con- quest, dated from the day of their coronation, there being no recognition in those times of the maxim subsequently imported into our law, that "the king never dies;" by which is meant, that the next heir ascends the throne at the very instant of the death of the previous sovereign. The change of practice in Edward L's case, whose reign dates from the day on which the barons swore fealty to him in his absence four days after his father's death, was due to his being in the Holy Land when his father died, and to the inconvenience that would have arisen had the throne been deemed vacant until his return. 3. Growth of the Hereditary Principle. In the fourteenth century the power of the national assembly to depose the king, of which we have noticed instances before the Conquest, was again exercised in the cases of Edward IL and Richard IL, But from the latter a previous, and from the former a subsequent, resignation of the crown was extorted ; and, while in the case of Eichard IL the greater weight seems to have been attached to the act of deposition, in that of Edward II. it was the king's own resignation which was publicly put forward as the ground for the accession of his son. At the same time the principle of a strict hereditary succession was gradually becoming stronger. It cannot be said that the The King \ 3 1 Act of 1350 (25 Edw. 3, st. 1), which placed the children of the king born out of England on the same footing with those born within the realm as regarded the right to succeed to inheritances, did much to advance it. But it received a decided development in the succession, on the W A death of Edward III., of his grandson Richard, as repre- j, a( I senting his deceased eldest son, the Black Prince. On the other hand, the accession of the Lancastrian dynasty was ^*' in violation of it, and depended on the acquiescence of the Parliament and people : but Henry IV. showed his appreciation of hereditary right_by dwelling on his own. - descent from Henry III.,, and also by obtaining an Act of Parliament (7 Hen. 4, c. 2) to the_effe;t that t^^k^t-- ance of the crown should remain in him and the heirs uj ///x Itody issuing. This arrangement was altered by a Parliament in 146Q, which declared that Henry VI. should wear the crown for life, and that after his death it should devolve on Richard Duke of York, who possessed the better title by birth. The duke was shortly afterwards defeated and slain at Wakefield, and when in the next year his son Edward entered London after his victory at Mortimer's Cross, first the lords assembled in council, and then the acclamations of the people, decided that Henry should no longer be king, because by making war on Duke Richard he had violated the arrangement made by himself and Parliament as to the succession of the crown, and that Edward IV. had good right to the crown, first, as son and heir of Duke Richard, the lawful inheritor of it; and secondly, by authority of Parliament and the forfeiture committed by King Henry. In the Acts of Edw. 4's reign, the monarchs of the rival line are always referred to as "late in deed, and not of right, kings of England." Richard III. was declared king by the popular voice in a somewhat similar way to his brother. In 132 History of the English Institutions Hen. 7's reign we find another settlement of the crown by Parliament, namely, that the crown should remain in Henry VIL and the heirs of his body for ever, and in none other (st. 1 Hen. 7, Tit. Reg.) This settlement has been so far observed to the present day, that every sub- sequent English monarch has been a lineal descendant of Henry VIL Disposition of the Crown by Parliament. The coronation of Henry VIII. appears to have been the last occasion in which the assent of the people to the perform- ance of the rite was formally asked during the service. In the reign of this king the power of Parliament to regu- / . Jate the succession was twice exercised, first, by an Act \5 $ I (28 Hen. 8, c. 7) entailing the crown on the king's sons by Jane Seymour or any other wife, and then on the king's legitimate daughters, and giving power to Henry, in case of default of such sons and daughters, to dispose of the crown by letters patent or will as he should please ; and I V secondly, by st. 35 Hen. 8, c. 1, which introduced into - , the succession Henry's two daughters, Mary and Elizabeth, and their issue, with" such conditions as Henry should impose by letters patent or by his will. 4. Successors of Henry VIII. Edward VI. united a strict hereditary to a parliamentary title. His attempt to exercise in favour of Lady Jane Grey, without the authority of Parliament^ the power of appointing a suc- cessor which Parliament had granted to his father, was repudiated by the nation, who accepted as his successors his two sisters, one or other of whom had clearly no claim on strictly hereditary principles. In the reign of the second, Elizabeth, an Act was passed declaring it to be treason either to deny the right of Parliament to direct {he descent of the crown, or to affirm in writing that any TJie King 133 person, other than the queen's issue, was her lawful suc- cessor, until the point should be settled by Parliament. The latter enactment virtually amounted to a retrospec- tive repeal of the power given to Henry VIII. to appoint a successor, failing the issue of his children, which he had exercised in favour of the children of his sister Mary, Queen of France. And this appointment was openly set aside when James I., the descendant of Henry's eldest sister, Margaret, was accepted and crowned king on the strength of his hereditary right _as lineal heir of Henry VII. , backed by considerations of expediency. But after his coronation it was deemed proper to confirm his title by Act of Parliament (1 Ja. 1, c. 1). In the first year of Mary's reign it was laid down as law, that when the kingly office devolved upon a female, she became invested with the royal prerogatives equally with a king, and that all statutes in which the latter was named applied equally to a queen (1 Mar. sess. 3, c. 1). The Stuart Monarchs. The fact that, after the restoration of Charles II., the years of his reign were reckoned from the death of his father^ was a distinct recognition of his inherent right to the crown by birth alone. Yet even in his reign it was by no means gene- rally admitted that an hereditary claim to the succession was absolutely indestructible. The exclusion Bill for omitting James Duke of York from the succession, and transmitting the crown as if he were dead, which in 1679 and 1680 actually passed the House of Commons, was an attempt to exert, against the wish of the king, the parliamentary control over the succession, which had at the instance of the reigning sovereign been exer- cised in the reign of Hen. 8, and asserted in that of Eliza- beth. The conduct of James, when on the throne, produced 1 34 History of the English Institutions another crisis in the history of the monarchy. After his second flight, the Convention Parliament, while it un- doubtedly in fact committed the act of deposing him and selecting His successor, veiled the transaction under the fiction of a voluntary abdication. They resolved "thu f , King James the Second, having endeavoured to subvert the constitution of the kingdom by breaking the original contract between king and people, and, by the advice of Jesuits and other wicked persons, having violated the fundamental laws, and having withdrawn himself out of this kingdom, has abdicated the government, and that the throne is thereby vacant." Of course, looking to the hereditary principle alone, an abdication by James would have transmitted the crown immediately to his son. 5 5. Acts of Settlement. In the following reign oc- curred the two latest instances of parliamentary legislation upon the succession to the crown. Upon the accession of "William and Mary the crown was settled on them during their joint lives, 6 and on the survivor after the death of either; then on the lineal heirs first of Mary, then of Anne, and lastly of William. But it was at the same time enacted that, whereas experience had shown "that it is inconsistent with the safety and welfaire of this Protestant kingdome 8 In Scotland, where the government was earned on without the presence of the king, so that his flight carried with it no appearance even of abdication, the Convention assembled by William plainly declared, " That James VII. , being a professed Papist, did assume the royal power, and acted as king without ever taking the oath required by law, and had, by the advice of evil and wicked councillors, invaded the fundamental constitution of the kingdom, and altered it from a legal limited monarchy to an arbitrary despotic power, and hath exerted the same to the subversion of the Protestant religion and the violation of the laws and liberties of the kingdom, whereby he hath forfaulted" (i.e., forfeited) " his right to the crown, and the throne has become vacant. " 6 But the regal power was to be exercised by William alone in the joint names of both. The King 135 to be governed by a Popish prince, or by any king or queene marrying a Papist," persons who should either be themselves members of the Church of Rome, or should marry a Papist, should be incapable of holding the crown; which should, in any such case of incapacity, descend to the nearest Protestant in the line of succession (1 Will. & Mar., sess. 2, c. 2). On the death of Mary without issue, and of the Duke of Gloucester, the last surviving child of Anne, who, like his brothers and sisters, died at a very early age, it was enacted that, on failure of the lines in- cluded in the succession by the previous Act, the crown should devolve on the Princess Sophia of Hanover, daughter of James L's daughter Elizabeth, and the heirs of her body, being Protestants. Besides a repetition of the provision disqualifying a person who should become or should marry a Papist, it was now enacted that all future sovereigns should join in communion with the Church of England as by law established (12 & 13 Will 3, c. 2). And by 6 Ann. c. 41, s. 2, it was enacted that if any person should maintain that " the kings or queens of this realm, with and by the authority of Parliament, are not able to make laws and statutes of sufficient force and vali- dity to limit and bind the crown, and the descent, limita- tion, inheritance, and government thereof," such person should incur the penalty of prcemunire. 6. Present Succession. Happily for the country, the limitation of the succession made in 12 & 13 Will 3, has been maintained to the present day without having ever required, and without, according to present appear- ances, being likely to require a further supplement ; nor has the necessity ever arisen for passing over an heir to the crown on the ground of religious disqualification. 136 History of the English Institutions CHAPTER V. PARLIAMENT. I. THE WITENAGEMOT, GREAT COUNCIL, AND PARLIAMENT. 1. Witenagemot. When several of the Teutonic shires became amalgamated into one kingdom, a new as- sembly, called the Miclielgemot or Witenagemot, was formed for regulating the affairs of the united people. It may be presumed that originally the same persons had the right to attend it, who were entitled to take part in the shire-moots ; but the size of the kingdom and the distances to be travelled would effectually prevent this right from being generally exercised. Accordingly, we find that the Michelgemot became practically changed into a Witena- gemot ; that the assembly, in fact, was attended almost exclusively by the wise men the ealdormen, and other officers of the kingdom, the king's thegns and the higher ecclesiastics, viz., bishops, abbots, and priors. The occa- sional traces which exist of the presence of other thegns, and even of ceorls, at its deliberations, may be accounted for by supposing that the ordinary thegns and citizens of London, Winchester, Exeter, or of any other city in which the witan happened to meet, and of the surrounding country, still exercised the privilege which had once be- longed to their whole class. It cannot, however, be sup- posed that they exercised any appreciable influence in the proceedings. The principle of the whole body of freemen taking part in the deliberations by deputy in the persons of representatives, though adopted for the shire-moots (see p. 75), was not extended to the composition of the national assembly. When the king of Wessex became monarch of England, Parliament 137 the witenagemots of the other kingdoms sank into the position of local deliberative assemblies, subordinate to the Witenagemot of England. The first traces of what is called Privilege of Parliament, or the peculiar immunities enjoyed by members of that body, appear in a law of ^Ethelberht about the close of the sixth century, to the effect that if the king summoned his people to him, and any one did an injury to them there, he should give double compensation, and pay 50 shillings (solidi) to the king besides. 2. Great Council. After the Conquest the Witena- gemot was transformed into a purely feudal assembly, con- sisting of the barons and others who held immediately under the Crown, and called the_Magnum Concilium, or Great Council. The lay and spiritual heads of the counties the comites (counts or earls) and the archbishops and bishops had seats in it, as in the Witenagemot ; for the former were the leading barons in their respective shires ; and a barony was soon after the Conquest attached to each epis- copal see. A similar annexation of a barony to many abbeys and priories gave the^privilege of attendance to the abbots and priors. Besides these, not only all the other greater barons, or, as they were afterwards simply called, barons, but also the lesser barons, or military Jtenants in capite, had the right to be present. The council was presided over by the king in person, or, if he were absent from the kingdom, by the chief-justiciary. The frequency of its meeting greatly increased in the reign of Hen. 2, who summoned it twice or thrice during every year of his stay in England. That monarch early infringed upon the purely feudal character of his Great Council by introducing the practice of sending a special writ of summons to the individuals who were to attend. The receipt of a sum- ] 33 History of tfie English Institutions mons, and not the possession of a barony, was now con- si ^ered as conferring the right to be present, while the omission of a summons would debar a baron from at- tending ; and the king in some cases issued summonses to persons who had not the old feudal qualification. Henry and his successors were thus able to introduce into the council lawyers and clerks, whom they desired to raise to judicial or administrative offices, and to make members of their ordinary council We shall see at a later period of the history how the habit of receiving summonses was at length considered to confer an absolute right to receive them, not only on the individual himself, but also on his heir, how, in short, the seats in the House of Lords, into which the Magnum Concilium had been then converted, became permanent and hereditary, and its members reco- vered their original right to attend independently of the caprice of the king. Attendance at the Great Council has, in the preceding paragraph, been spoken of as a right or privilege, but it was equally looked upon as ajluty. The presence of the barons at the king's court was in fact a pledge and security for their continuance in allegiance to him. Accordingly, those who did not present themselves were liable to ajine, unless they obtained the king's license to appear by a procurator or proxy. Thus originated the right of the peers to record their votes by proxy, which they continued to exercise until 1868. While such was the origin of the position of the nobility in Parliament, the presence in it of the other two estates of the realm, the clergy and commons, 1 was secured but gradually and fitfully ; and, in the case of the former, was 1 The three estates of the realm are the Clergy, Lords, and Commons ; the three estates of Parliament are at present the King, Lords, and Commons. Parliament 1 39 destined to be of but short duration. In Hen. 2's reign we read on one occasion that deans and archdeacons, as the historian has it, " without number" were present at the Great Council At another time almost all the knights of the realm are said to have attended. But neither deans and archdeacons nor knights appear to have had any voice in the deliberations of the council. Representation. The system of representation first appears in the composition of the national assembly at the commencement of the tJKiytMByth century. In 1213 the sheriffs were directed by the king's writ to send to him four discreet knights of each shire, ad loquendum nobiscum ~ de negotiis regni nostri, " to hold parley with us concerning the affairs of our realm." These knights were probably appointed by the sheriff. Their number was the same as that of the knights who at that time were summoned to select the recognitors for the grand assize and the grand jury for the county. (See ch. viii.) In the same year John summoned the town-reeve and u >. ^four representative men from every township in the royal '^ demesne, to confer with him on the affairs of his kingdom. As the boroughs were for the most part held in demesne, this summons may be said to have involved a representa- tion of burgesses, and the assembly in which they met is styled a council. The Archbishop of Canterbury and other bishops and nobles were present, and it was presided over by the chief-justiciary, who, in the name of the king, pronounced a confirmation of the laws of Hen. 1. Neither county nor borough representation in the national council is contemplated by Magna Carta, which prescribes that for assessing an extraordinary aid, or the scutage, the king shall summon by writ the archbishops, bishops, earls, and greater barons, and shall also summon, through the sheriffs and king's bailiffs, all who hold of 140 History of the English Institutions the king in capite. But instances of the representation of the counties by chosen knights occurred on several occasions in Hen. 3's reign. Thus in 1254 the sheriffs were required^ to send from each county to the king's council at Westminster two qualified and discreet men, whom the county should choose as its representatives, for the purpose of determining what aid they would grant to the king for his expedition into Gascony. Each sheriff was to explain the king's necessity to the knights and others of the county, and induce them to consent to an adequate aid, so that the representatives might come prepared to name the amount which their county would contribute. In 1261 the confederate barons issued sum- monses, which were afterwards confirmed by the king, for the attendance of three knights from each shire to discuss the common affairs of the realm. The first summons of burgesses to Parliament was in 1,264, when _writs were issued by Simon de Montfort, in the name of the king, to the sheriffs for the return of two knights for every county, and to the cities and boroughs for tin- return of two citizens or burgesses from each, to deliberate on public affairs. The principle of representation con- tinued to be occasionally recognised during the next thirty years, but it was not until 23 Edw. 1 that the Lower House can be said to have been regularly constituted. The name of Parliament appears to have been first applied to the ' assembly early in that reign. The Clergy. As regards the attendance or represen- tation in Parliament of the estate of the clergy. InJ.213 the deans attended the council as they had done in Hen. 2's reign. The practice of proctors orjleputie.8. from tha inferior clergy attending Parliament began in lien. 3's reign. There is an undoubted instance of it in 12r>5, and it apparently took place on a few occasions previously. Parliament 141 . They were summoned by Edward I. in 1283 and 1294, and in 1295 (23 Edw. l),jwhatis called the prcemunientes clause, because, it Levins with that Avonl, was for the, first time inserted in the summonses of all the bishops, requir- ing them to bring with them to Parliament the prior or dean of their cathedral church, their archdeacons, and one proctor for the chapter, and two for the clergy of the diocese.__ The prcumunientes clause became a regular form in the summonses of the bishops, although the clergy soon ceased to attend Parliament. They met instead in their provincial convocations, to which they were summoned by the archbishops, and as they there fulfilled the object for which they were summoned to Parliament, namely, the v< >t ing of subsidies from their own order^hey were excused from attendance at the national council The discon- tinuance of their attendance was the more easy from the fact that, when present, they had always formed a distinct body, and voted apart from the knights and burgesses. 3. Parliament. From the final division of the assembly into two houses, it will be convenient to postpone the consideration of the changes which the composition of each house has since undergone, and to deal first with matters affecting the two houses alike, or Parliament as a whole. II"] Meeting of Parliament. Thrice in the course of the reigns of Edw. 2 and his son we find enactments that a Parliament shall be held_annually ? . or twice in the _year if need be, and that in a convenient place, for the maintenance of the statutes and redress of divers mischiefs and grievances which daily happened (5 Edw. 2, c. 29; 4 Edw. 3, c. 14; 36 Edw. 3, st. 1, c. 10). But the tendency on the part of our kings and their counsellors to neglect the annual assembling of Parliament, which is 142 History of the English Institutions indicated by the necessity of repeating this enactment, continued to prevail notwithstanding its reiteration. Privilege. The privilege of Parliament, the germs of which we saw before the Conquest, and which had since been partially recognised, was distinctly confirmed by st. 1 1 Hen. 6, c. 1 1, which punished assaults upon members on their way to Parliament. The privilege of freedom from arrest during the session was asserted by the Commons in the following reign; and in 4 Hen. 8, Parliament by statute annulled a sentence which had been passed and penalties which had been inflicted by the Stannary Court ^nJRichard Strode, jfor Bills introduced by him and cer- tain other members into Parliament, which that court had adjudged to be destructive of the privileges of the Cornish tinners ; and declared that all proceedings of a civil or criminal nature which should thereafter be brought against him or his associates on account of any Bill intro- duced into Parliament, or any language or arguments there used, should be utterly void^ Freedom of Debate. The Commons had before this asserted as against the Crown their right of freedom of debate. It is not clear when the old feudal practice that the king should himself be present at the delibera- tions of his council or Parliament was given up ; but upon the division of the assembly into two houses, the king, of course, could not be present in both ; and the right j)f the Commons to insist on his absence from their debates was admitted by Henry IV., who also promised that the king should not receive or give any credence to reports of what _p_assed at those debates. But this promise did not always in succeeding reigns serve to protect members who in- curred the displeasure of the Crown by their conduct in Parliament. Thus, in 31 Hen. 6, Thorp, the speaker, was imprisoned ; and although, on the complaint of the Parliament 143 Commons, the judges gave an opinion in his favour, he was kept in prison, and the Commons at the king's com- w niand proceeded to choose a new speaker. 4. Meeting of Parliament. Until the middle of the seventeenth century no law existed as to the duration of a Parliament, except that it was always deemed to be dis- solved on the death of the sovereign. And the frequency of c ^ ^ T 3 . its meetings, respecting which the statute-book did contain a direction, was in practice regulated less by that than by the necessities of the sovereign. But after the twelve years (1629-1640) which Charles I. had suffered to elapse without a Parliament, one of the first measures passed by the Long Parliament was the Triennial Act by which /* ^ every Parliament was to be ipso facto dissolved at the expiration of three years from the first day of its session, or if then sitting, at its first subsequent adjournment or proro- gation, and a new Parliament was to be elected within three years from the dissolution of the last. And Parlia- ment was not to be dissolved, nor was either house to be adjourned without its own consent, within fifty: days after its meeting. This Act, however, which had been infringed by the very Parliament which had passed it, was repealed after the Restoration at the request of Charles II., and one of his Parliaments sat for seventeen years. Nor was the annual assembling of Parliament invariably observed by the two later Stuarts. Irregular Assemblies. In the summer of 1640, Charles I. being unwilling, after his unsuccessful experi- ment of a Parliament in the spring, again to convene the representatives of the Commons, and at the same time being reduced to the greatest pecuniary straits, reverted to old feudal precedent, and convened a great Council of peers at York. This assembly voted him 200,000 out of 144 History of the English Institutions their own resources, but were of course unable to give him any other assistance. In the case of the conventions of Lords and Commons, which met at the Eestoration and Revolution, some of the strict parliamentary forms were wanting. For the peers had never received the royal summons, and the whole body had met without royal authority. It was therefore deemed necessary on both occasions that the assembly should pass an Act, declaring itself to be a Parliament (12 Cha. 2, c. 1 ; 1 Will. & Mar., c. 1). This, of course, could not, from a strictly legal point of view, remedy the defect ; nor on the later occasion was the blot entirely removed by the fact that the succeeding Parliament, con- vened by the authority of the sovereigns who owed their title to the Convention of 1688, solemnly ratified the Acts which the latter had passed (2 "Will. & Mar., c. 1). Privilege. From the time of Hen. 8 it became the practice, at the commencement of every new Parliament, for the speaker of the House of Commons, immediately after his election, to claim from the king, on behalf of members of the house, their ancient privileges of access^ to the king'sjerson, freedom of speech, and freedom from arrest. The possession of these privileges by both houses, together with the power of enforcing respect to them, I~-Q became of great importance in the struggles between Parlia- ment and the Crown in the seventeenth century. Privilege from arrest was at that time extended to the servants of ^membersj and it was held a breach of privilege not only ' ^\ * serve an y sor ^ ^ l e o a l P rocess on members, but also to commit any civil injury against them which would put them under the necessity of seeking redress at law. The only eases in which it did not apply were those of mem bers accused of treason, felony, or refusal to give surety for the peace. The privilege, in the case of peers, was Parliament 145 perpetual ; and in the case of members of the other House, existed during the session, and for a certain time before and after. Charles L set at defiance the privilege of the Upper House in 1625^ by the imprisonment of Lord Arundel; and that of the Lower in the following year, by the , arrest of Sir John Eliot and Sir Dudley Digges for words spoken in debate. There was no such justification for this proceeding, as there was for the imprisonment of/Sir John Eliot ^ifiT^ftlfers, f6ree' /l y%ars later, when (as was dispas- j sionarely resolved by the Commons after the Eestoration) they had, in detaining the Speaker in his chair, been guilty _of_a_riot^.from the consequences of which privilege could afford them no protection, inasmuch as it does not extend to acts, but only to words. But the most flagrant viola^ tion of parliamentary privilege by Charles was his personal visit to the House of Commons in 1641, for the purpose I of seizing thejive obnoxious members in their places. This proceeding, though it proved unsuccessful, and though he apologised for it, was one of the chief causes which brought about the final alienation between himself and his Parliament and people. Privilege of debate was reasserted after the Restoration. In the Act of JL66L, which imposed penalties on persons making malicious or detrimental allegations respecting the king or the established government, or advancing certain political opinions, care was taken to introduce a proviso ( that nothing in the Act should extend to deprive either J L mse of Parliament, or any of their members, of their just ancient freedom and privilege of jje^bating any matters or business propounded in Parliament, f the principal debates in one or two of the magazines of the year began at the accession of *y L ^ Gfeorge I. The initials only of the speakers were given, and the publication was withheld till after the ses- sion. And when publication even during the recess was prohibited, and more rigorous measures were taken by the House of Commons against offenders, the debates were disguised as the proceedings of the Senate of Great lalliput or of the Political Club. The last attempt on the part of the House of Commons to punish the pub- ,^- ; lication of its debates was in 1771^ and led to a conflict between that House and the Lord Mayor and aldejmenfM b}3M of the city of London, who in the Mayor's Court had declined to treat the printers of the debates as guilty of any offence, and were ultimately committed to the Tower by order of the House for the rest of the session. Though the publication of the debates remains in theory a breach of privilege, it has since proceeded with impunity; and it has been found that the misrepresentation of speeches, which was so much complained of when the publication of the debates was carried on under disguise and in constant fear of punishment, and which was advanced as one of the strongest arguments for its total suppression, entirely ceased when all interference and Parliament 151 restraint were abandoned. Reporting, however, still con- tinued diflicult. The taking of notes was prohibited, and no places being reserved for reporters, they had to wait sometimes for hours to secure seats in the limited space allotted to strangers. And the way in which members voted still remained, generally speaking, a secret. The Houses themselves recorded merely the numbers in the division ; and in 1696 the Commons declared the printing of the names of the minority a breach of privilege destruc- tive of the freedom and liberties of Parliament, . , x . J* 9 Q. Presence of Strangers. The power of a single member of either House to require at any time the exclu- sion of strangers was exercised in the Lower House in 1849, and again in 1870, 1872, 1873, and 1875, but was modified by a resolution of the House on 31st May 1875. After the destruction of the two houses by fire in 1.834, the presence of strangers in the galleries and other parts of the House of Commons not appropriated to members was recognised by the orders of the House, and separate galleries were assigned in both houses for the accommo- dation of reporters. Since 1853 strangers have been permitted to remain in the House of Commons during a division, and the same liberty has been allowed to them in the Upper House since 1857. Publication of Proceedings. Notwithstanding the declaration of the Commons in 1696, the lists of the minority, and latterly of the majority also, were occa- sionally published in the case of important divisions; but it was not until 1836 that the practice was begun in the Lower House of recording the votes of the members, and publishing them daily as part of the proceedings of the House. The daily publication of the division lists of the House of Lords dates from 1857. Moreover, the Com- 152 History of the English Institutions mons since 1839, and the Lords since 1852, have printed the names of members present on select committees, with their votes upon every point, and the questions addressed by them to witnesses. It is characteristic of the altered state of feeling, that whereas in the last century the House of Commons were in conflict with the courts of justice respecting their right to uphold the secrecy of their proceedings, the last instance of a similar conflict was owing to their assertion of the right to publish their proceedings for the benefit of the nation. In 1835 they directed all their papers to be publicly sold at a cheap rate, and in the following year certain reports were by their order published by Messrs Hansard, containing reflections on a book by an author named Stockdale, who thereupon brought an action for libel against the publishers. In this action the judges of the Queen's Bench held that the order of the House of Commons was no justification to Messrs Hansard for publishing the libel, and notwithstanding a resolution of the House condemning this decision, Stockdale brought another action, and the sheriffs proceeded to levy the amount of the damages upon Messrs Hansard. There- upon the House retaliated by committing Stockdale and his attorney and the sheriffs to the custody of their serjeant-at-arms, and an Act of Parliament was passed to protect all persons publishing papers by order of either House (3 & 4 Viet., c. 9). That the publication of the debates of both Houses, even without their order, is privileged on the ground of public policy, was laid down in 1868 by the Court of Queen's Bench, which decided, in the case of Wason v. Walter (8 B. & S. 671), that an action for libel could not be maintained against the pro- prietor of the " Times " for matter published in the course of a fair and faithful report of proceedings in Parliament Parliament 153 Privilege. In 1812^ bankruptcy was made a dis qualiticutiuii for sitting in the Lower House (see p. 167). Until 1869, however, members of both Houses, though liable to be made bankrupts, continued as bankrupts to enjoy the privilege of Parliament. But in that year the new Bankruptcy Act abolished all the benefit_pf privilege as regarded bankruptcy, in England, and similar provisions as to^ Ireland were inserted in the Irish Bankruptcy Act of 1872. ^ g /" LT. THE HOUSE OF LORDS. 3. Members. After the constitution of a new House IS ' to represent the interests of the commons, the Upper House, the lineal successor of the Witenagempt and Great Council, became in process of time_confined jto the jiobility_of the, land by the gradual elevation to the peerage of some of the tenants in capite or lesser barons, and the omission to _summon the rest to Parliament. The abbots and priors who held baronies continued to sit until Hen. 8's reign, and with the bishops considerably outnumbered the lay peers. The latter consisted chiefly of barons by_tenure_ lords who held a barony under the Crown. But there were others who had been summoned to Parliament with- out possessing the qualification of tenure, and who were therefore called barons by writ_; and with respect to these, it was, in the 14th century, a common practice for the king to omit to summon them or their descendants to subsequent Parliaments. At this time, too, knights ban- nerets were often summoned to the Upper Souse. In the early part of Hie. 2's reign cases occur of peons being created by Parliament And the first instance of their /3 7 creation by letters patent was in 10 Eic. 2. Number of Peers. In the Parliament of 1454, the r : ' /; 1 54 History of the English Institutions last before the civil war, the names of 53 lay peers are recorded as in attendance. Their numbers were reduced by the struggle of the Roses, and Henry VII. summoned only 29 to his first Parliament. This number included some whose attainder had never been judicially reversed. The greatest number summoned by Henry VIIL was J. By the dissolution of the monasteries about 36 abbots and priors were withdrawn from the Upper House, and the spiritual peers were reduced to a minority of the whole body, and formed about_one-third of the hqusej their total number being thenceforward 26. This included the bishops of the 5 newly created sees, to which, although no baronies were attached to them, the right of a seat in the Upper House was annexed. Chancellor. Among the incidents connected with the office of chief -justiciary, which upon its abolition in Edw^lig reign devolved on the chancellor was the posi- tion which that functionary had held in the council or Parliament. The chancellor therefore became, and has ever since continued to be, the prolocutor or speaker _of , the House of Lords. He may, however, speak and vote like the other peers, and has no casting vote ; equality of votes having the effect of negativing the question before the House. 4. Status of Peers. About the end of EhVs reign, /4 ( + the receipt of a writ of summons to the Upper House was held to confer an inheritable peerage, descendible, as was subsequently decided, upon heirs female as well as male ; and conversely in 1626, it was recognised as a fundamental principle 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 with business if any peer I' is denied it. The number of peers, which Elizabeth Parliament 155 maintained at a very low figure, was considerably aug- mented by James I. and Charles I., both of whom adopted in several cases the practice of selling peerages. The number of temporal peers who sat in the first Parliament of James L was 8JJ. That king created 62 new peerages, and Charles L, 59. But at the same time many old peerages became extinct, so that not more than 139 peers received summonses to attend the Parliament of 1661. For the same reason, although Charles II. added 64, and James II. 8 new peers, the number of temporal peers, exclusive of minors, Eoman Catholics, and non-jurors, was in 1696 only about 140. Protests and Proxies. About the time of the Reformation peers obtained the privilege of recording, if they pleased, in the journals of the House, their dissent from a measure which they had unsuccessfully opposed. The right of adding the grounds of their dissent was first asserted towards the middle of the seventeenth century. In the same century it became a rule that proxies which had previously been held by persons not members of the House, should, in the case of a spiritual lord, be entrusted only to a spiritual lord, and in that of a lay peer, only to another lay peer ; and the number of proxies to be held by any one peer was limited to two. Before this restric- tion, the Duke of Buckingham had in one Parliament held 14. 5. Increase of Peerage. After the Eevolution the augmentation of the peerage continued with greater rapidity before. In 1711. Anne created 12 in one batch for d ) ^ 16 purpose of obtaining a majority in the House in favour "of the Crown. The Act of Union with Scotland in 170J / ^ added to the house ^6 representative peers for the latter kingdom, elected at the commencement of every Parlia- 156 History of the English Institutions ment by the Scottish peers, who at that time numbered 154. 2 In the years 1719 and 1720, attempts were made to jre-^ strict the increase of its members. It was proposed that the existing number of 178 peerages should not be aug- mented by more than 6, though new peerages might be created in lieu of any which became extinct; and in- stead of the 16 representative peers, 25 hereditary peers of Scotland were to have permanent seats. The scheme V i V/ 1116 ^ with favour in the House of Lords, but was rejected by a large majority of the Lower House. In Geo. 3's iito i vre ig n > P eera S es were granted with a profusion previously { unparalleled, amounting to no fewer than^388. In this -^ num ber, however, are included some promotions of exist- ing peers to a higher rank in the peerage. The House was further augmented in 1801 by the 28 representative peers 1 2 for Ireland, chosen for life by the nobility of that country. In order to reduce the excessive number of that nobility, the Act of Union with Ireland provided that only one new Irish peerage should be created for every three which should become extinct, until the reduction of the number toJIOO, when it might be maintained at that figure. Irish peers, not being chosen representatives, were permitted to sit in the House of Commons as representatives of any constitu- ency in Great Britain. The Act of Union with Ireland 2 Soon after the Union the Lords resolved that no Scottish peer, on being admitted to the peerage of Great Britain, obtained a right to sit in Parliament or upon the trial of peers. This resolution, while it lasted, was evaded by creating the eldest sons of Scottish peers peers of Great Britain, who having thus obtained seats in the House of Lords did not lose them on succeeding to their Scottish titles. In 1782, however, the restriction was removed, the judges having given an unanimous opinion that it was not contemplated by the Act of Union. The principle was shortly afterwards established, that a Scottish peer on being raised to a peerage of Great Britain loses his right to vote for Scotch representative peers, and, if one himself, &t once ceases to be so. Parliament 157 also gave seats in the Upper House to four Irish bishops,. They were to pass to the different bishops by rotation of sessions, but one was to be always filled by an archbishop. Creation of Peers. The circumstances which at- tended the passing of the Eeform Bill of 1832, proved the importance of the unlimited prerogative of the Crown to create new peerages, jixteen new members were thus actu- ally added to the Upper House in order to assist the progress of the Bill- ^And the mere fact that there existed a power of effectually overriding the opposition of the peers to the measure, by the creation of a further number adequate for the purpose, notwithstanding the extreme repugnance to the exercise of that power, and the dread of its con- sequences which the king shared with all who valued our constitution, was sufficient to give force to the circular letter of the king, by which, without the knowledge of his ministry, he prevailed on a number of the opposition peers to abstain from continuing to resist the measure. 6. Spiritual Peers. During the reigns of Queen Victoria and her predecessor, one or two unsuccessful at- tempts have been made to exclude the bishops from the House of Lords. In 1834, and again in 1836 and the following year, the House of Commons, by majorities of more than two to one, refused to entertain the question of depriving them of their seats in Parliament. On the other hand, upon the creation of the bishopric of Man- chester in 1847, it was determined that the episcopal element in the house, although of insignificant proportions as compared with former times, should not be increased, but that the bishop last appointed to any of the English or Welsh sees, except those of Canterbury, York, London, Durham, and Winchester, should wait for his seat in 1 5 8 History of the English Institutions Parliament until the occurrence of another vacancy. It was naturally provided by the Irish Church Act of 1869 that, upon the disestablishment of the Church of Ireland, her bishops should cease to have seats in the House of Lords. Life Peerages. Before the meeting of Parliament in 1855, the Crown, on the advice of the ministry, issued letters patent to Sir James Parke, who had been a baron of the Court of Exchequer, giving him a peerage for life with the title of Baron Wensleydale. When Parliament met, the House of Lords referred this patent to a com- mittee of privileges, which, while they did not question the power of the Crown to confer such a peerage on its subjects and thereby give them rank and precedence, reported that the life-peerage could neither of itself, nor with the addition of the writ of summons founded upon it, entitle the grantee to sit and vote in Parliament. The House agreed to the report, and the Crown, in deference to its decision, issued a new patent conferring on Lord Wensleydale an hereditary peerage. Shortly afterwards a bill was brought in to authorise the Crown to grant life-peerages to two judges of at least five years' standing, who should sit with the Lord Chancellor as judges ol appeal and deputy speakers ; but, after passing the House of Lords, it was lost in the Commons. Proxies. The practice of giving proxies having been found to diminish the personal attendance of peers in Parliament, was discontinued by a resolution of the House in 1868. Number of Peers. The total number of peers, lay and spiritual, having seats in the House in iftie year 1874, was 492. The number of Scotch peers which, at the time of the Union, was 154, has now by extinction and absorption into the peerage of the United Kingdom, Parliament 159 dwindled down to one-half of that number ; and as no new members of the order can be created, the whole body may possibly at some future period altogether disappear, being incorporated into the national nobility. III. THE HOUSE OF COMMONS. 3. Early Composition. The regular and unvarying attendance in Parliament of representatives from both counties and boroughs dates from JJ29IL In that year the number of knights who sat was 74, and the number of burgesses 200. The knights seem to have been origin- ally chosen only by the military tenants in capite, but as their election took place in the county court, in which all freeholders had a voice, it probably soon fell into the hands of the whole body of freeholders. The deputies for a borough were probably elected originally by all the burgesses or resident householders, but when a poorer class of householders sprang up, unable to discharge the duties attaching to full citizenship, the franchise became limited in some towns to the inhabitants who paid taxes under the name of scot and lot, and in others to those who held houses or land in the town by burgage tenure. From the fact that the rates of taxation for the countii'- and boroughs were in Edw. 1's reign often different,at may be inferred that the knights and burgesses in many cases voted separately. But in Edw. 2's reign they were permanently united together in one House, although an instance occurs so late as 6 Edw. 3 of the knights taxing themselves at a less rate than the burgesses. In the reign of Edw. 3 and the three following reigns, 1?-' . about 180 burgesses and 74 knights sat in the Lower House. In 46 Edw. 3 complaints were made of the number of , lawyers returned as knights for counties, and an ordinance 160 History of the English Institutions was passed rendering them ineligible as such. This ordinance, after having been long disregarded, was formally repealed in 1871. Imperfect Representation. The representation in the Lower House was in early times exceedingly imperfect. Not only was the attendance of the elected members very defective, but in the holding of the elections themselves great irregularity ..prgJAiki^- The Crown exercised the I right of from time to time summoning deputies from new Tboroughs, and omitting other boroughs which had been previously represented. Moreover, the obligation to pay 3 L salary to their, j^presentative^ which amounted to 4s. per diem for a knight and 2s. for a burgess, caused consider- able gaps in the representation ; for the sheriffs were prevailed upon by some boroughs to pass them over on account of their poverty, while others on the same ground obtained express dispensation from sending deputies. Others again, when the writ for the election was issued 3. to them, ^refused to comply with it. Sometimes, too, Jihe sheriffs fraudulently omitted to return^ deputies for boroughs within their bailiwick. And in both counties and boroughs they frequently, at the instance of the Crown, or for their own private interests, exercised undue influence over the elections. In general, the_king and his privy council had at this time exclusive jurisdiction over dis- puted elections. , But in the reigns of Hen. 4 and Hen. 6 statutes were passed punishing sheriffs for making false returns. And st 7 Hen. 4, c. 15, alluding to the mal- practice, enacts that the elections of knights shall be made in the full County Court by all there present freely and indifferently, notwithstanding any request or com- mandment to the contrary. This Act probably did not create any new privilege, but merely declared the existing right of all the freeholders to take part in the election. Parliament 161 faj.fk*t+tt In 1429, however, it was found necessary to curtail ft this right, owing to the riots that took place at the elections; and_the_possession of a freehold of at least 40s. jjlearjumual value was thenceforth fixed as a qualification for a county vote. St. 8 Hen. 6, c. 7, by which this was effected, also repeated, as to knights of the shire, the qualification of residence which had been required by an Act of 1 Hen. 5, for the eligibility of representatives of both counties and towns. The election of deputies for cities and boroughs gradually fell into the hands of the corporations.. At first they obtained the concurrence of the whole community in the choice, but ultimately they acquired exclusive control over it. 4. Members. The first instance of an heir to the peerage sitting in the Lower House was in 1549, when, O* same time the Housj^jnwcessjiilly asserted its right to determine alTcases of contested elections. It is true that in the following reign the royal proclamation for the meeting of Parliament in 1604 arrogated a control over the elections ; but the case of Fortescue and Goodwin's election in that year was the last attempJLlo dispute the exclusive jurisdiction of the House in the matter. The 1 62 History of the English Institutions right of the House to expel one of its members, which was asserted in the case of Arthur Hall in 1581 (see p. 146), was frequently exercised by the Long Parlia- ment. New Boroughs. The control exercised by the Crown over the constitution of the Lower House by the arbitrary creation of new parliamentary boroughs was continued by the successors of Henry VIIL Under Edward VI. the privilege of returning members was granted to fourteen additional towns, and restored to ten who had lost it by disuse. Mary added twenty-one.? ElLzabethjdxty-two, and James I. twenty-seven new members to the Lower House. Many of the so-called decayed boroughs, the scandal of which was one of the causes of the Eeform Act of 1832, were thus created, when their condition was no better than it was three centuries later. Some of them received the franchise at the same time as their charters of incorpora- tion, in the hope, which proved illusory, that prosperity would follow. To others it was grantedjnerely on account of their being part of the ancient demesne of the Crown, or subject to its influence. The practice was especially carried out in Cornwall, where the Stannary Court was a ready engine of royal coercion. Thus, between the acces- sion of Edward YL and the death of Elizabeth the number of Cornish boroughs returning members was increased from five to twenjy=one. In l_5G_3_eight now boroughs at ~bnce were created "by" charter,^ a measure which was acquiesced in by the House of Commons, though not without question. In the reign of Ja. 1 the Commons resolved that every town which had at any time re- turned members to Parliament was entitled to a writ as a matter of course. And in accordance with this reso- lution, the privilege was, upon their petition, restored to fifteen boroughs during that and the following reign, Parliament 163 The County Palatine and city of Durham were first admitted to the franchise in 1673. 5. Members. After the Ee volution the Crown and its ministers being unable any longer to coerce the House of Commons, endeavoured to secure a majority within its walls by a large distribution of places, pensions, and titles of honour. With the prerogative of the Crown in grant- ing the last of these attractions the House never took upon itself to interfere, and thwarted an attempt of the Upper House to do so. But when William III. began to multi- ply offices for the purpose of controlling Parliament, the Lower House in 1693^ passed a Bill to prohibit all mem- bers thereafter elected from accepting any office under the Cro\vn. This Bill having been thrown out by the Lords, a similar measure was introduced in the following year and passed both Houses, but was lost from a refusal of the royal assent. The Act of Settlement in 1700 enacted that, after the accession of the House of Hanover, no person holding an office or place of profit under the king, or receiving a pension from the Crown, should be able to sit in the House of Commons. This enactment, if carried out, would have brought Parliament into hopeless conflict with the executive, but it was repealed in Anne's reign before it came into operation, and the Act for the Security of the Crown and Succession (6 Ann. c. 41), contained clauses instead to incapacitate from sitting in the House the holders of any new office created after the 25th October 1705, as well as persons in receipt of a pension from the Crown during pleasure, and to oblige members to vacate their seats on accepting any of the existing offices, though they were allowed to be immediately re- elected. Even in the preceding reign certain Govern- ment officials, such as the Commissioners of Stamps and 164 History of the English Institutions Excise, had been expressly excluded from the House, and to these others were now added. But owing to the reser- vation in favour of old offices the House was still liable to be swamped with placemen, and previously to 1742 we find upwards of 200 officials actually holding seats. In that year, however, a short Act was passed, which excluded at one sweep a vast number of commissioners and clerks in public offices, and the number was forty years later still further reduced, when Lord Buckingham's Civil List Act suppressed many superfluous offices which had been usually held by members. Further special disqualifica- tions of particular offices have since been added. The common law judges had been from the earliest times in- capable of sitting in the Lower House. This incapacity was from time to time extended by statute to the Scotch and Irish judges, and to the holders of newly created judicial offices in England ; so that the only judge now capable of sitting in the House is the Master of the Rolls. An exception from disqualification has always been made in favour of the holders of naval and military commis- sions; and officers of the militia, yeomanry, and volunteers, enjoy the same privilege of sitting. The provision in 6 Ann. c. 41, with reference to persons receiving pensions from the Crown, which was a few years later extended to pensions for a limited term of years, proved ineffectual^ to restrain the undue influence thus obtained by the Crown, owing to the practice adopted by ministers of granting^ secret pensions out of the large sums annually voted by Parliament as secret service money, to be applied for purposes which it was against the interests of the nation to disclose. This abuse was at length checked by Lord Rockingham's Act, already alluded to, which restricted the grants of secret service money to a small amount, and contained stringent provisions to prevent Parliament 165 its being applied in pensions (22 Geo. 3, c. 82). Moreover, the purchase of the support of members by entrusting them with lucrative Government contracts extensively prevailed, / until an Act of the same year ^prohibited contractors for ,' the public service from sitting in the House (22 Geo. 3, 0.4$). Nor did the ministers of the Crown content themselves with obtaining by these means the general support of members of the House. They did not scruple to offer special sums of money for votes on particular occasions when an important measure was at stake. This bribery of members was commenced in Cha. ffgjreign, and ^as largely resorted to by the ministers of Will 3. It w!e' f '- partly with a view to secure the return of members who would be free from temptation of this kind, and partly in order to exclude rich commercial men, that a measure passed both Houses in J_696^ and, after failing to secure William's assent, became law in the following reign, which imposed as a qualification of membership the receipt of an annual income from land to the amount of J.30Q in case of a burgess, and 600 in case of a knight of the shire. But even persons holding this amount of property were found venal, and bribery of members was reduced to an organised system under the administration of Sir Eobert Walpole, and was continued by his suc- cessors. The dispensing of the bribes was popularly known as the " management of the House of Commons " and was entrusted to an experienced ministerial agent Little or no secret was made of the practice, and correct reports were not unfrequently circulated of the sum which a division of importance had cost the Government. Besides the payment of actual sums, bribery sometimes took the form of a distribution of shares in public loans. ^ and lotteries under their market jyalue. ft is said that 1 66 History of the English Institutions by this latter means the country sustained a loss of 385^000 in 1763, and of as much as 900,000 in 1781. The direct bribery of members of Parliament appears to have ceased about the close of the American war. It is at any rate certain that Mr Pitt, though he employed it to obtain the consent of the members of the Irish Parlia- ment to the Act of Union, never resorted to it in the English House of Commons, and no minister has since ventured to do so. Mr Pitt, moreover, in his first year of office began the practice of receiving sealed tenders for the public loans, which enabled him to accept the most favour- able terms offered ; and he distributed the lottery tickets among the subscribers to the loan in proportion to the sums which they lent. The change thus effected was of hardly less importance than Lord Rockingham's Contractors' Act in restraining the indirect bribery of members of Parliament by the Government. Exclusion. In 1714 Sir Richard Steele was expelled from the House for writing a pamphlet called the Crisis, reflecting on the ministry. Fifty years later the Com- / -tfo , mons expelled Wilkes for publishing the North Briton, No. 45 (see p. Fi^); and when in 1768 he was returned for Middlesex to a new Parliament, he was again expelled. Being immediately re-elected, he suffered a third expulsion, accompanied by a resolution of the House, that his expul- sion rendered him incapable of being elected a member to serve during the continuance of that Parliament, an ex- tension of their right of exclusion which was of very doubtful legality. In defiance of the House he was again re-elected, but the election was of course declared void; and upon a new election, when the constituency persisted in placing him at the head of the poll, the House gave the seat to the candidate who obtained the next largest num- ber of votes. The contest was thus for a time ended, but Parliament 167 Wilkes was returned in a subsequent Parliament, and at length obtained from the House a resolution that all the proceedings connected with the Middlesex election should be expunged from its records. Insolvency was first recognised as a disqualification for a seat in the House of Commons in 1812, when it was enacted that upon the bankruptcy of any member he should be debarred from sitting and voting for twelve months ; and if at the end of that time the bankruptcy was not annulled, or his debts paid in full, his seat should be deemed vacant, and be filled up by a new election. Elections. The Bill of Rights affirmed that_elections of members of Parliament ought to be free. But after the Revolution the independence of the elections, like that of the House itself, though in no risk of forcible infringement, was liable to a danger of a different kind. It was natural that members who took bribes themselves should not scruple to employ the same means in order to retain a position which they could turn to personal profit. Bribery_of electors like that of members existed in the reign of Cha. 2, and increased after the Revolution. At the beginning of Geo. 2's reign its prevalence had excited such alarm, as to lead in 1729 to an Act which inflicted severe penalties on persons receiving bribes. But notwithstanding this measure, and others on the same subject, the practice continued to increase. The validity of a disputed election was at this time determined by the whole House, and it was found almost impossible to obtain a vote adverse to the election of a member of the dominant party. To remedy this scandal, Mr Grenville in 1770 obtained the passing of an Act,^which transferred the jurisdiction over all cases of controverted elections to a sworn committee qf_ thirteen members. Acts of Union. The Act of Union with Scotland 1 68 History of the English Institutions (6 Ann., c. 11) provided that 45 representatives of that kingdom should sit in the Lower House in the Parliament of Great Britain, of whom 30 should be chosen by the shires, and 15 by the royal burghs. And by the Act of Union with Ireland in 18QO (39 & 40 Geo. 3, c. 67), the number of Irish members in the House of Commons of the United Kingdom was fixed at 100, being two for each county, two for each of the cities of Dublin and Cork, one for Trinity College, and one for each of the 31 prin- cipal boroughs. Representation. The three chief defects in the representation of the people in the House of Commons arose (i.) from the number of parliamentary boroughs which had either been originally rotten, or else had decayed through migration of the population; (ii.) from the fact that the elections had in nearly all the boroughs fallen into the hands of the corporation ; and (iii.) from the growth of wealthy and populous commercial towns, which possessed no right of sending members to Parlia- ment. The existence of these defects led Lord Chatham to advocate the reform of the House of Commons as early as 1766. The subject was taken up by his son, after having been agitated in the interval by Wilkes and others ; but the king being averse to it, Mr Pitt did not press the matter, and on ,the outbreak of the French Eevolution all idea of it was abandoned. After the close of the war in 1815, proposals for reform were again started, and were brought almost annually before Parliament. Some of these were of a very advanced character, extending to manhood suffrage, and even to the female franchise, together with equal electoral districts, vote by ballot, and annual parliaments. Towards the close of Geo. 4's reign the agitation for reform received an impetus from the disclosure of corrupt practices of a flagrant character Parliament 169 in some of the close corporations and rotten boroughs. The accession of ^WilL_4 was soon followed by the advent to power of Lord Grey and a Whig ministry,, by whom a reform bill was introduced early in JL83L After carrying the second reading in the Commons by a majority of one in a house of 608, they were beaten upon the Bill in com- mittee, and dissolved Parliament. In the new House of Commons they had a decisive majority, and passed the Bill in the month of September. But it was thrown out by the Lords in the following month, upon which Parliament was prorogued till December, and when it met again the Bill was brought in anew with improvements founded on the recent census and on statistics obtained in the interval. This Bill having passed the Commons in March, was read a second time in the Upper House by a small majority. When, however, the Bill went into committee, the ministry met with an adverse vote, and resigned ; but it being impossible to form any other administration, they were speedily recalled, and the Eeform Bill passed both Houses, and became law on the 7th June 1832. By its provisions _5J rotten boroughs, with less than JOOO inhabitants, and returning 111 members, were swept away. Thirty boroughs, having an aggregate of less than 4000 inhabitants, lost each a member, and Weymouth and Melcombe Regis were in future to return two between them instead of four. Thus 143 seats were left to be appor- tioned between the different towns and counties in the United Kingdom requiring additional representation. The right of returning two members was granted to 22 large towns, including metropolitan districts, and that of return- ing one to 21 more ; and at the same time provision was made for altering the boundaries of the parliamentary boroughs. The number of county members was increased from 94 to 159, the larger counties being divided into 170 History of the English Institutions distinct representative divisions, and a third member being given to others. The occupation of a house of the yearly value of 10 or upwards was fixed as the quali- fication for the franchise in boroughs, the rights of freemen of corporate towns being alone reserved. The county con- stituency was enlarged by the admission of persons holding copyhold or leasehold land of a certain value. And an endeavour was made to lessen the expenses of elections by the registration of electors, the division of counties and boroughs into convenient polling districts, and a reduction of the days of polling (2 & 3 Will. 4, c. 45). 1 In the same session a Scotch Reform Bill was passed, by which the number of Scotch representatives was increased from 45 to 53, 30 of whom were given to counties, and 23 to cities and boroughs. The county franchise was extended to owners of property of 10 a year, and to certain classes of leaseholders, and the burgh franchise to all 10 householders (2 & 3 WilL 4, c. 65). The disfranchisement of rotten boroughs in Ireland had been effected at the Union, but a Reform Act was passed for that country, which took away the right of elec- tion from the corporations, and vested it in the 10 house- holders, and made large additions to the county consti- tuencies. The number of Irish members was at the same time increased from 100 to 105 (2 & 3 Will. 4, c. 88). The effect of the three Acts was thus to leave the total number of members at its former figure, 658. 6. Members. As the result of the measures already noticed for restricting the tenure of offices and pensions by members, there were in the reformed House of Com- mons of 1833 only 60 members who held civil offices and. pensions from the Crown. The requirement of 6 Ann. c. 41, as to vacation of seat and re-election on the accept- Parliament 171 ance of any office under the Crown, has been dispensed with by the Reform Acts of 1867-8 in the case of the transfer of a member of the ministry from one office to another. The property qualification of members, after being altered at the commencement of Queen Victoria's reign, was altogether abolished in 1858. Exclusion. The right of the House to expel and exclude its members has more than once been the subject of discussion in the reformed Parliament. In 1849, when Smith O'Brien, M.P. had been adjudged guilty of high treason, the House ordered the Speaker to cause a writ to be issued for a new election to supply his place; and in 1870, when O'Donovan Rossa was returned f or Tipperary, while under sentence of penal servitude for life for trea- son-felony, they prefaced a similar order with a resolution that Rossa, by his conviction and sentence, had become and continued incapable of being elected or returned a member of the House. In 1875 John Mitchel was in like manner excluded from taking his seat for the same county. And the Act of 1870, which abolished forfeiture for treason and felony, provided that persons thereafter convicted of those offences should, while undergoing punishment, be inca- pable of sitting or voting as a member of either House, or of exercising any parliamentary or municipal franchise. Representation. In 1850 the borough franchise in Ireland was extended to 8 householders, and a reduction was made in the qualifications required for the county franchise in that country. During the years 1850-60 several measures for further reform in England were unsuccessfully proposed. Lord Pal- merston, who became prime minister for the second time in 1859, was disinclined to move in the matter, and after the abandonment of the bill of 1860, it made no progress during the remainder of his tenure 172 History of 'the English Institutions of office, which lasted till his death in October 1865. Meantime the demand for the lowering of the franchise and a redistribution of seats had been strengthened by the vast increase of the population, arid the growth of new towns of large dimensions not possessing the franchise ; and in the session after Lord Palmerston's death, Earl Russell's Government brought in a Reform Bill, upon the details of which they were defeated, and resigned office in consequence. In the following year, 1867, Lord Derby's Conservative ministry, by the management of Mr Disraeli in the House of Commons, and with the help of their opponents, who were in a large majority in that House, succeeded in carrying a comprehensive measure of reform in England, which they supplemented in the follow- ing year by similar Acts for Scotland and Ireland (30 & 31 Viet. c. 102; 31 & 32 Viet. c. 48; 31 & 32 Viet. c. 49). By these Acts the borough franchise was given in Eng- land and Scotland to every man of full age after a resi- dence of twelve months within the borough, either as a householder paying the poor-rate, or as a lodger in lodgings which would let unfurnished for at least XI a year. A similar franchise was accorded to Ireland, but instead of the household franchise, votes in the Irish boroughs were given to occupiers of houses or land within them rated at a net annual value of not less than ,4. The county franchise in Great Britain was at the same time extended to all persons possessed of land in the county of the clear yearly value of 5 and upwards, except persons holding under short leases, and to all owners or tenants paying the poor-rate, and occupying land in the county of the rate- able value of at least 12 in England, and 14 in Scot- land. As the qualifications for the county franchise in Ireland had been already reduced by the Act of 1850 to almost exactly these figures, no alteration of it was con- Parliament 173 sidered necessary. Nor as regards Ireland was any change made in the shares of the representation allotted to the boroughs and counties. In Great Britain, however, and more particularly in England, these underwent con- siderable modification. Several boroughs were deprived of one of their members ; and on the other hand, new boroughs were created, old boroughs received a third member, and large and populous counties, which had pre- viously formed one constituency, were divided into dis- tricts with a distinct representation for each district. At the same time a totally new principle, that of the representation of minorities, was in a very imperfect and partial manner introduced into our representative system, by the provision that at contested elections in a con- stituency returning three members, no person should vote for more than two candidates, nor in the city of London, which returns four members, for more than three candi- dates. The effects of this is, that in these constituencies at a general election the party who are in the minority can usually secure one of the seats ; but in the rest of the country the elections are left as before, altogether in the hands of the majorities of the constituencies; and even in the favoured places themselves the minority may lose their representation if their candidate happens to die or vacate his seat during the continuance of the Parliament, since in the election to supply the vacancy the majority can assert their numerical superiority without restraint. This, however, is of course also the case where elections are conducted with the cumulative vote (see p. 123). The total number of members was left unchanged by the Reform Acts of 1867-8; but seven seats were trans- ferred from English to Scotch constituencies, so that at present England and "Wales return 493, Scotland 60, and Ireland 105 members. 174 History of the English Institutions The Reform Act of 1832 has been followed at intervals by measures for simplifying and improving the registra- tion of electors, for increasing the number of polling places, and for reducing the time of polling to one day in counties and boroughs, and to five days in the Universities. The proceedings at University elections were further altered in 1861, by the power then given to persons entitled to take part in them, to record their votes by voting papers, instead of coming up from all parts of the king- dom to exercise the franchise. Many measures have been taken during the last forty years with a view to the suppression of bribery at Parlia- mentary elections, but hitherto with only partial success. Several boroughs have been disfranchised on account of its prevalence in them; and in 1854 an Act was passed, limited in its duration to one year, but annually renewed ever since, which made the offer or acceptance of a bribe a misdemeanour punishable with fine, imprisonment, and forfeiture of franchise ; and prohibited treating, cockades, colours and music at elections. And since experience proved that the committees before whom elections were impugned on the ground of corruption, were apt to look on the case with too lenient eyes, the House in 18G8 surrendered in favour of the courts of law its long-cherished privilege of ex- clusive jurisdiction in cases of controverted elections The present mode of questioning the validity of an elec- tion is to present a petition against it, which is tried before one of the judges of the superior Courts of common law. The judge certifies the result of the trial to the Speaker, and at the same time reports any corrupt practices which have been proved before him, and the House takes the requisite action on his certificate and report. The existence of bribery and intimidation was one of the main reasons adduced for the Ballot Act of 1872. The Kings Council 175 The proposal to substitute voting by ballot for the old English method of open voting was made in almost every session after 1832, and was actually carried in the House of Commons in 1848. But it subsequently fell into dis- favour, and its chance of becoming law was very small until Mr Gladstone's Government took it up in 1871. The Ballot Bill of that year was thrown out by the Lords, but in the following session an Act was passed abolishing the open nomination of candidates on the hustings, and imposing a secret ballot as the method of polling at all parliamentary and municipal elections, except in the Universities (35 & 36 Viet c. 33). The Act was to continue in force till the 31st December 1880. CHAPTER VI. THE 'KING'S COUNCIL. 1. Pre-Norman Period. It is almost impossible to conceive of any monarch, however great his power and intellect, being able to exercise dominion over a consider- able community without receiving continual advice and assistance from at least a few of his subjects. Accord- ingly, we find that the early English kings, besides consulting the Witenagemot, kept certain counsellors _per- jnanently attached to their court for the purpose of dis- charging the functions of government. They had their stallere or constable, their dish-thegn, their bower-thegn or chamberlain, and their chancellor officers originally charged, as their names imply, with menial duties in the palace, but in process of time entrusted with the military, financial, and general administration of the realm. 2. Concilium Ordinarium. It was shown in the last chapter, how, at the Conquest, the Witenagemot was 176 History of the English Institutions converted into a feudal assembly the council of the king's barons or vassals. This, according to feudal theory, was the proper council from which the king should seek advice, and ought to have been assembled by him thrice in the year. But attendance at the king's court involved, on the part of its members, who were scattered throughout the country, an interruption of their domestic and local affairs, and the performance of an arduous journey ; so that they were well content that the king, instead of convening the whole body, should resort to the advice of a select number of the members of the Great Council, consisting of those nobles, both lay and ecclesiastical, who held offices in his liousehold (which gradually became offices of state), and were therefore more or less constantly about the king's person, and of a few others who were specially summoned by him. This smaller body was called the ^Concilium Ordinarium, or Permanent Council. like the Great Council it was, before it parted with its judicial functions, and even for some time afterwards, called the Aula Regia or Curia Regin, and was presided over by the king, or in his absence by the chief justiciary (see p. 137). Its regular members under the early Norman kings were the chief justiciary, lord chancellor, lord treasurer, lord steward, chamberlain, earl marshal, and constable. But besides these, there were sometimes present in it the comptroller of the household, the chancellor of the exchequer, the judges, the king's Serjeant, and other officials. While its members in their different official capacities attended to different branches of the royal and public business the justiciary, for instance, to judicial matters, the chancellor to the king's grants and appointments, the constable and marshal to military and foreign affairs, the treasurer to the public finance, and the steward and chamberlain to The King's Council 177 the management of the king's palace and private property all in their position of counsellors united in deliberat- ing on public affairs, and took part in the administration of them. At first the Concilium Ordinarium was merely a sort of ^standing committee of the Great Council. It held its meetings at the times of the year when that body ought, strictly speaking, to have been summoned; and whenever the latter was convened, the Ordinary Council sat with it, and became merged for the time being in the larger assembly. Gradually, however, just as it became separated from its offshoots, the law courts, on the one hand (see below, ch. viiL), so on the other it became a defined institution distinct from the Great Council or Parliament ; and it eventually met at all times of the year according to the exigencies of state affairs. Yet even so late as Hen. 4'j reign, we find a resolution that nothing should be transacted in the council out of term-time, ex- cept matters which would not admit of delay. 3. Origin of Privy Council. At first the only avenue of admission to the council which was open to commoners lay through the Church j but in Hen. 4's reign, in 1404, we find, as the members of his council, three bishops, nine peers, and seven commoners, of whom six were knights making nineteen in all. The coun- cillors at this time held their office for a year only; but not long afterwards they were appointed for life, though they continued removable at the king's pleasure, or at their own wish. During the minority of Henry VI. they were nominated by Parliament, but ordinarily, like all other officers of state, they held their appointments from the Crown. They, or at least those of them who attended regularly, were bound by a special oath to ad- vise the king according to the best of their ability, to 178 History of the English Institutions keep the king's counsel secret, and to assist in the execu- tion of what should be resolved on, and were paid salaries of considerable amount. About the time of Hen. 6 a distinct line of demarcation was drawn between the sworn and paid counsellors and the occasional members of the council, the former being constituted into the Privy Council, and monopolising all the administrative and exe- cutive duties. 4. The Council under the Tudors and Stuarts. The distinction between {6rivp councillors and <0jxlinary councillors is met with inHen. 8's reign, and it is one which, in fact, exists to the present day; for although all persons appointed to the council are sworn and considered as privy councillors, they do not attend the council board unless specially summoned. The ordinary councillors of Hen. 8's time and subsequent reigns were qualified to take part in the judicial^business of the council in its court of Star Chamber, but not in its administrative functions. In Hen. 8's reign increased importance was given to the office of president of the council, and an Act was passed to fix the order of precedence in Parliament, and in the council, of the person who held this position, and of the other principal officers of state (31 Hen. 8, c. 10). In / Edw. 6's reign the council consisted of 40 persons, of whom 22 were commoners, and was divided into five commissions or committees, to which different judicial and administrative functions were assigned. Under this arrangement jhe committee " for the state," composed of one-half of the whole number, was in fact the Privy Council, while those who were not upon it were in the position of ordinary councillors. The numerical pro- portion and influence of comnioners in the council was maintained by Elizabeth, but declined in favour of the TJic King's Council 179 nobility in the next two reigns. After the Restoration, when the Star Chamber, and with it the judicial functions of the Privy Council, had been abolished, the reason for the existence of ordinary as distinct from privy councillors no longer existediTrom that time, therefore, all councillors were sworn as privy_ councillors ; but, while Charles II. largely increased their number, he introduced the practice of summoning only a limited number of them to deliberate on state affairs. Thus was originated the Cabinet, of which more will be said in ch. ix. 5. The Council since the Revolution. Although, since the Revolution, the whole administrative functions of the council have been monopolised by the Cabinet the council has continued to exist as the legally recognised body to which those functions are entrusted, and of which the Cabinet is, in the eye of the law, merely a committee, like the committee "for the state" of Edw. 6's reign. Thus it was against a foreigner, even though naturalised, becoming a privy councillor, and not merely against his being a member of the Cabinet, that a clause of the Act of Settlement of 1700 was directed; it was a privy coun- cillor, an assault upon whom when in discharge of his duties was made felony, without benefit of clergy, in Queen Anne's reign ; and it was the whole Privy Council, and not the Cabinet only, which, by a statute of the same reign, was empowered to continue and act for six months after a demise of the sovereign, having previously been ipso facto dissolved upon that event 6. Committees of the Council. The Cabinet, as at present constituted, usually consists of between 12 and 15 of the leading members of the ministry for the time being. There are, besides, other committees 180 History of the English Institutions of the Privy Council for dealing with special subjects. After the suppression, in 1782, of the Commissioners of Trade and Plantations, the supervision of mercan- tile and colonial affairs, formerly entrusted to them, was transferred to a committee of the council called the Board of Trade. In 1833, when appellate judicial powers of large extent were restored to the council, it was provided that they should be exercised by a committee called the Judicial Committee of the Privy Council. And, early in Queen Victoria's reign, when the practice had been commenced of making annual parliamentary grants for educational purposes, a " Committee of Council on Education" was appointed by the Crown to superintend the distribution of the' money voted. A few years after- wards, the Poor Law Commissioners, appointed in the preceding reign, were superseded by the Poor Law Board, of which four cabinet ministers were to be ex-officio members. This Board, however, was not obliged to be exclusively composed of privy councillors; but in 1871 it was in turn abolished, and its functions, as well as the powers previously vested in the Privy Council at large, the Board of Trade, and the Home Secretary, in reference to public health and other matters, were transferred to a new committee of the council, consisting of cabinet ministers, and styled " The Local Government Board." All privy councillors, whether at the time serving on any of its committees and boards or not, are distinguished by the title of " Eight Honourable." The fact that they enjoy this title in common with the peers, the members of the Upper House, which, as has been stated, is the present representative of the old Great Council, is a vestige of the close connection which formerly existed between that body and the king's smaller council. PART III. Central >obmunent. CHAPTER VII. LEGISLATION. 1. Pre-Norman Legislation. In the English con- stitution the king has ever theoretically been vested with the supreme legislative as well as executive powers. But in the exercise of his legislative functions a certain number of his subjects have been almost always, at least nominally, associated with him. In the early times the king frequently, perhaps in the majority of cases, took the initiative in legislation ; but all the laws were expressed as made with the counsel and consent of the witan. ^Elfred, for instance, in the preface to his code, states that he had introduced into it many former laws which appeared to him good, while those old laws which he disapproved he had rejected by the counsel of his witan ; and that, having made his compilation, he had shown it to all his witan, who had expressed their approval of it The above remarks apply to ecclesiastical and civil legisla- tion alike ; for the king, with the advice of the lay and spiritual members of the Witenagemot, made laws upon religious no less than upon secular subjects. 1 82 History of the English Institutions 2. Early Norman Legislation. During the reigns of the Conqueror and his sons the laws were put forth in the form of charters granted or promulgated by the king, which, however, always contained an expression to the effect that they were made with the counsel and consent of the nobles. The same was the case with the assizes or constitutions, as they were called, of Hen. 2's reign. Magna Carta was granted by the counsel of the arch- bishops, bishops, and nobles, and other faithful subjects ; and we know that as regards this instrument such was the actual fact : but probably in many of the enactments of John's predecessors the expression of consent was no more than a form, or if the consent of the nobles was actually asked for, it was granted as a matter of course, without any option on their part to withhold it And in many cases the utmost that the words can be taken as implying is, that the decree received the assent of the Concilium Ordinarium ; for whilst the meetings of the Great Council were infrequent, the former body no doubt possessed con- siderable legislative as well as executive power. This is evident from the fact that in Edw._Ts_ reign, when Parliaments, which had taken the place of Great Councils, began to meet regularly, and enact statutes in due form, there were issued, distinct from these parliamentary statutes, articles and ordinances expressed as made by the king and his council. There are a few laws in our statute book in which the mention even of the council is omitted, and which therefore ostensibly rest on the authority of the king alone. Early Parliamentary Legislation. The admission into Parliament of all three estates of the realm 1 did not at once lead to the distribution of the legislative power among all The main object of the presence of the clergy 1 See note 1, p. 138. Legislation 183 and the commons being to sanction taxation, the latter were until 1295 sometimes summoned not ad faciendum, " in order to enact," but only ad consulendum et con- sentiendum hiis qua comites, barones et proceres ordina- verint, "in order to give counsel and consent to such things as the earls, barons, and nobles shall ordain." Occasionally, as in 1290 and 1294, all the legislation of the year was transacted by the barons before the repre- sentatives of the commons had assembled. In 1290 the important statute Quia Emptores, which put an end to the subinfeudation of land, was thus passed without their concurrence. But from the year 1295 their enacting functions were always recognised in the language of the writs by which they were summoned, 3. Growth of Power of Parliament. Edward II, in the third year of his reign, was prevailed upon to empower the lords of the realm to choose a body of per- sons called ordainers, who should make ordinances for the government of the royal household and of the kingdom in general These ordinances having imposed considerable restrictions on the king's prerogative were repealed in 1322 ; and it was at the same time expressly enacted that all matters concerning the estate of the king, the estate of the realm, and of the people, should be treated of and established in Parliaments by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as it had been theretofore accustomed. The principle thus laid down became fully recognised in the course of the following reign. The continuous prac- tice of expressing in Acts of Parliament the concurrence of the commonalty as well as of the lords dates from 1318, a few years previously. About this time the Com- mons began to exercise the right of initiating legislation 184 History of the English Institutions by petition. Every petition was referred to certain spiritual and temporal lords, appointed from time to time as auditores petitionum, receivers or tryers of petitions, and the king returned an answer to it in accordance with their advice. Then from the petition and answer together the statute was drawn up by the judges, a practice which, of course, involved the risk of a deviation in the Act from the intention of the Commons, and which in fact was often fraudulently taken advantage of to effect that result The statute so drawn up was expressed as made, not by the assent of the Lords and Commons, but by the assent of the Lords and at the request of the Commons. The clergy also, as late as the reigns of Eic. 2 and Hen. 4, either in Parliament or in Convocation, presented peti- tions which became law at their request by the assent of the Lords alone, without the concurrence of the Commons. The laws against heresy of 5 Bic. 2 and 2 Hen. 4, which were incorporated into the statute book, were of this description. Bills. The practice of legislating by Bills was gradually introduced in the reign of Hen. 6, and it soon became a recognised principle, that in accordance with a concession made by Henry V. in the second year of his reign, but not immediately observed, the king must accept or reject the Bill in its entirety, without qualification or alteration. But if slight alterations were made by the Lords in a Bill sent up to them from the Commons, it was not at this time held necessary that it should be sent back to the latter for assent to the amendment The presentation by the Commons of private petitions, for which private Bills were afterwards substituted, was introduced in Hen. 5's reign, and the greater part of the Eolls of Parliament of that and the following reign was occupied with statutes founded upon them. The main features of the form now used in Acts of Parliament "Be it enacted by the Legislation 185 King's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in this present Parliament assembled, and by the authority of the same," have been employed with tolerable regularity since 1 Hen. 7, from which time the statutes, formerly drawn up in Latin or French, and after- wards in duplicate in one of these languages and in English, were exclusively drawn in English. The word " assent," however, was originally used instead of " consent," and the expressions " our Sovereign Lord the King," and " the King's Highness," instead of " the King's Majesty." All the enactments made in one session were up to this time looked upon as chapters of one statute, and it was not until 7 Hen. 7 that it became customary to prefix a separate title to each particular chapter, and to treat the chapters as distinct Acts. The separation of private Acts (which are only binding upon the persons specified in them, and not upon the nation at large) from the public general statutes appears to date from 31 Hen. 8. Legislation by King in Council. But legislation, in certain cases, by ordinances (or laws which wanted the ^consent of one branch of the Legislature), and by procla- jnations issued on the authority of the king and his council alone, independently of Parliament, was still continued. The practice was expressly sanctioned, under certain limita- tions, by st. 31 Hen. 8, c. 8, which enacted that the king, with the advice of a majority of his council, might set forth at all times by the authority of that Act his pro- clamations, under such penalties and pains as might seem necessary, and that the same should be obeyed as though they were made by Act of Parliament ; but the exercise of this power was not to entail upon any person or body cor- porate the loss of inheritance, possessions, offices, liberties, franchises, or goods, nor the punishment of death, except 1 86 History of the English Institutions in the case of heretics, or of persons who left the realm to avoid a trial for an offence committed against any pro- clamation ; nor should any proclamation subvert or infringe the existing statutes or customs of the realm._ In the same reign the Act which established the Council of Wales (34 & 35 Hen. 8, c. 26) enabled the king to make laws for the Principality without the consent of Parlia- ment This power was abrogated in Ja. 1's reign. Suspending and Dispensing Powers of the King. In addition to this right of independent positive legislation, the king possessed an arbitrary power of a negative kind, in his prerogative of suspending a law altogether, or dispensing with its requirements in parti- cular cases. Instances occur of the suspension of laws by Richard II. and Henry IV. ; and throughout the reigns of all the Plantagenets a dispensing power in favour of indi- viduals was recognised as belonging to the king, and was frequently exercised by him. Thus, although st. 23 Hen. 6, c. 7, after declaring that all patents to hold the office of sheriff for more than one year should be void, expressly enacted that the king should not have a dispensing power in the matter, yet all the judges in Hen. 7's reign held that the king might, by virtue of that power, grant a patent for a longer term on good grounds, whereof he alone was judge. The ancient and undoubted prerogative of pjirdon, which is possessed by the Crown, is in a sense a power of dispensing with the law of the land. Attempts were from time to time made to restrain it by statute, but all such enactments have been held void, and have been disregarded. Ecclesiastical Legislation. In the 46th year of Edw. 3 we find in the writs of summons to Parliament the declaration that Parliament is to be held " upon arduous and pressing matters .... affecting the state and defence L cgislation 187 ef our realm of England and the English Church." 2 This mention of the Church, though it never occurs hefore, was repeated ever afterwards, until the Ballot Act of 1872; but its first insertion does not appear to have been due to any change in the relations between Church and State. On the contrary, it merely expressed the control over ecclesiastical affairs which the great national council con- tinued to exercise after the Conquest though in a less degree than before, owing to the connection between Church and State having been weakened by the intervention of a foreign element, the ecclesiastical dictation of the Court of Rome. When the Convocations separated from Parlia- ment (see p. 141) they claimed and exercised a concurrent power of legislation for the clergy in Church matters. 4. Limitation of the King's Powers. The Statute which had invested royal proclamations with the force of Acts of Parliament was repealed by 1 Edw. 6, c. 12, but the arbitrary issue of these proclamations was long continued on many matters in which such an inter- ference was not authorised by the law. In Mary's reign the judges laid down that the sovereign might make a procla- mation to put the people in fear of his displeasure, but not to impose any fine, forfeiture, or 'imprisonment, " for no proclamation can make a new law, but only confirm and ratify an ancient one." The limits thus defined were not, , however, strictly observed. In the next three reigns we c> find proclamations against thegrpwth of London, against the residence of the county gentry there, against the eating of flesh in Lent, or on Fridays and Saturdays, and on other matters affecting the liberty of the subject One in 1634 fixed the price of poultry and butter. The * " Super arduis et urgentibus negotiis .... statum et defen- gionem regni nostri Anglise et Ecclesire Anglicanse contiugentibus." 1 88 History of the English Institutions violation of them was frequently punished by fine or imprisonment through the medium of proceedings in the Star Chamber. In 1610 a remonstrance by the Commons against them led to a reaffirmation by Sir Edward Coke and some members of the council, whom the king con- sulted on the subject, of the principles laid down by Queen Mary's judges. Notwithstanding this the practice was not abandoned, a few instances of it being found as late as Cha. 2's reign. The illegal proclamation of 1^ James II. on the subject of the aufaana is noticed in M^h. X. On the other hand, after the shock which the constitu- tion sustained by the later proceedings of the Long Par- liament, and the establishment of the Commonwealth, it was deemed necessary by express enactment (13 Cha. 2, st. 1, c. 1, s. 3), to deny the existence of any legislative power in either House of Parliament, or both Houses, without the king, and to impose the penalty of a pre- munire on a person who ventured by writing, or in speech, to affirm its existence. But while the inability of the separate branches of the Legislature to make laws without the concurrence of all three was being thus gradually established, the claim on the part of the king, not only to dispense with laws already made in favour of particular individuals, but also to suspend their operation as regarded the whole community, was not finally surren- dered without a struggle. In the reign of Cha. 2, in the course of a private suit, the legality of the king's ^dispensing power ^came under the consideration of the judges. It was then held that the power could not be exercised with regard to the I, Q_ common law, or any statute prohibiting a thing which was in itself wrong or injurious, nor so as to prejudice the rights or interests of an individual or corporation. Legislation 189 The deliberate employment, by James_IL, of the royal powers of dispensing with and suspending laws, in order "to subvert and extirpate the Protestant religion, and the lawes and liberties of this kingdome," was questioned in the courts, and formally declared to be legal by the judges of that day. A collusive action was brought against Sir Edward Hales, who, in defiance of the Test Act, had accepted the commission of colonel without having received the sacrament in the Church of England. A royal dispensation was pleaded in defence, and eleven judges out of twelve affirmed the king's right to dispense with the Test Act. Not content with this dispensing power, James, by hisJDeclarations of Indulgence^ took upon himself to suspend altogether the operation of the penal statutes which had been enacted in former reigns against Eoman Catholics and Protestant Dissenters. It was evident that the assumption of this despotic preroga- tive, by which laws, however fundamental or important, could be abrogated at the mere will of the king, was inconsistent with a limited monarchy; and the exercise of it was one of the main causes which led to the Eevolu- taon, and one of the first points upon which care was ~ "taken after that event to obtain a clear legal definition, Passing of Bills. The method of passing Bills through the Legislature had, before the Eevolution, become settled in the form in which it now exists. According to this method the Crown can initiate no Bill, except Bills for a general pardon. The Lords possess the exclusive right of originating Bills affecting the peerage, such as for restitution of forfeited honours and reversal of outlawries; while, with the Commons alone can begin Bills imposing any tax or burden on. the community. All other Bills may commence with either House indifferently. Except in the case of Bills of grace, as for a general pardon, 1 90 History of the English Institutions which are passed on the first reading, the progress of a Bill is as follows : Leave is first asked to bring in the Bill, and if obtained, it is then brought in and read a first time. These, though really two distinct stages, usually in practice follow immediately the one upon the other. At a subsequent date the Bill is read a second time, and the House then goes into committee upon it, and discusses its clauses in detail, making such alterations and additions as appear desirable. All private Bills, and sometimes public measures, instead of coming before a committee of the whole House, are referred to a select committee of a limited number of members specially appointed for the purpose. When the consideration of the Bill in com- mittee is finished it is reported to the House, and at this stage further amendments can, if desired, be introduced, and it may be recommitted for the purpose. After the report has been finally agreed to, it is read a third time, and the question is then put, " That this Bill do pass." At any one of these stages it is liable to be lost by an adverse vote, or may be withdrawn by its promoters, if alterations are introduced into it to which they cannot assent. When passed, it is sent to the other House, where it undergoes the same process ; after surviving which, it is returned to the House whence it originated, in order that the latter may consider any amendments which have been introduced into it since it left them. The amendments are either agreed to or disagreed to ; and in the latter case, if both Houses persist in their respective views on the subject, a conference takes place between deputed members of both Houses with a view to coming to an agreement If this is found impossible, the Bill must necessarily be dropped. When a Bill has been passed, and agreed to by both Houses, it is submitted to the Crown for the royal assent, and becomes law upon Legislation 191 this being given in the form, " le roi le veut ;" the negative, which would be fatal to the Bill, being expressed in the courteous form, " le roi s'avisera." If a Bill has been lost at any of its stages, no second Bill to the same effect can be brought into Parliament during the same session ; and if the session terminates either by proroga- tion or dissolution before a Bill becomes law, the steps through which it has passed are thrown away, and it must be brought in and started anew in a subsequent M's-ion. The whole process thus described is well adapted to prevent hasty legislation on any subject, and to pro- vide the opportunity of due consideration being given to every measure. At the same time, in cases of emergency it does not unduly hinder the passing of important Bills ; for, when necessity requires it, all the steps can be got tlirough in one day. Thus, on Saturday the 17th February 1866, the Bill for the Suspension of the Habeas Corpus Act in Ireland was introduced at noon, and after passing through all its stages in both Houses, received the royal assent three-quarters of an hour after midnight. Ecclesiastical Legislation. Since the Reformation the king and Parliament have legislated upon all Church matters in the same manner as upon secular affairs. The legislative power of Convocation was restrained by the Act for the submission of the clergy to the king (25 Hen.8, c. 19), which prohibited them from making any _new canon, or other law without the king's previous license. This was occasionally given during the remainder of the sixteenth and first half of the seventeenth cen- turies. But after /16JJ4, /when Convocation ceased to grant subsidies (see ch. x.), little business was done in it In 1717 it was suddenly prorogued on account of the excitement caused by the Bangorian contro- versy, which had arisen out of the denunciation by the ] 92 History of the English Institutions Lower House of the Convocation of Canterbury, of a sermon on religious liberty by Dr Hoadley, Bishop of Bangor. Thenceforward it was for more than a century regularly convened every year, and as regularly prorogued immediately afterwards. But about the year 1850 the practice of sitting for debate and discussion was resumed ; and in 1861 the assembly was empowered by royal license to alter the canon which prohibited parents from being sponsors to their children. Again, in 1872 Convocation was empowered, by letters of business from the Crown, to frame resolutions on the subject of public worship, which were afterwards embodied by Parliament in the Act of Uniformity Amendment Act (35 & 36 Viet. c. 35.) 6. Bill of Rights. The powers of the Crown as to interference with legislation were finally determined by theJBill of Eights (1 Will & Mar., sess. 2, c. 2), which laid down as follows : " That the pretended power of suspending of laws or the execu- tion of laws by regall authority without consent of Parlyament, is illegall. " That the pretended power of dispensing with laws, or the execution of laws by regall authoritie, as it hath beene assumed and exercised of late, 3 is illegall." Abuse of Power by House of Commons. The right. which, as will be shown in ch. x., the Commons had at this time acquired, not only of initiating money Bills, but also of having them passed through the Lords without amendment or alteration, was about this time perverted so as virtually to deprive the Lords of their right of legislative interference in other matters. In 8 The qualifying words in italics, which were inserted by the Lords, have reserved to the Crown the ancient prerogative of pardoning criminals, or commuting their sentence into one of a milder character. Legislation 193 1692, and again in 1699^ the Commons inserted in a money Bill clauses on subjects of a general character, respecting which the Lords were therefore unable to make any amendments without depriving the king of his requisite supplies. Though this most unconstitutional and reprehensible artifice was on those two occasions suc- cessful, the Commons happily did not persist in the prac- - tice. Royal Assent. The direct share of the king in the making of laws, none of which can become binding with- out his consent, was of course retained unaltered at the Eevolution. William III. three times availed himself of it to reject measures which had been passed by both Houses of Parliament, but since his reign the uniform repetition of the le roi (or la reine) le veut has never once been broken by the contrary utterance (see p. 191). This has, no doubt, been in great part due to the fact that the affairs of the country have since that time been conducted by a united and responsible ministry, acting in harmony with the king on the one hand, and Parliament on the other, as will be explained in ch. ix. Through its inter- vention any difference of opinion between, the sovereign and the two Houses upon a proposed measure becomes known, and is settled by concession on the one side or the other, before the final step of the submission of the Bill for the royal assent is reached. We are therefore by no means to conclude that during the last 160 years the sovereign has exercised no personal influence whatever upon the progress of legislation, but rather that this influence has been exerted in a different way, and at an earlier stage in the proceedings. The sovereign, when strongly adverse to a proposed measure, has induced liis ministers to abstain from bringing it forward themselves, and to procure its defeat in Parliament if brought forward 194 History of the English Institutions by others. Thus George III. succeeded in preventing^ during the whole of his reign the removal of the disabilities of Itomun Catholics and their admission to political privi- leges, by his own personal aversion to the proposition, without the necessity of exercising his constitutional veto. Classification of Acts. Until 1793 all Acts which were not specified to come into operation on a given day, were held to commence from the first day of the session in which they were passed. This involved, in many cases, the injustice of retrospective legislation, and was altered by st. 33 Geo. 3, c. 13, which required all Acts in future to be endorsed with the date on which they received the royal assent, and prescribed that date as the time of their com- mencement, if no other date of commencement was speci- fied in the Acts themselves. Down to 38 Geo. 3, the Acts had been divided simply into public and private, the public Acts containing, many of a merely local or per- sonal nature. But from that year onward the public Acts were divided into two series, public general and public local and personal Acts, the chapters of the former being designated by Arabic, and of the latter by Eoman numbers. 6. Power of House of Commons. The course of legislation since the Eeform Act of 1832 has been marked by two principal features. The first of these is the pre ponderating influence and power of the House of Commons, which, as now representing with tolerable exactness the wishes of the majority of the people, is felt to be that branch of the Legislature which has the best right, within due limits, to dictate the shape to be assumed by legisla- tion on all important public matters. The function of the Upper House, as regards these matters, has been almost Legislation 195 exclusively confined to checking for a time or modifying the proposals of the Commons the instances being com- paratively few where it has made a permanent stand in such matters against the action of the Commons, or has initiated a course of legislation of its own. Delegation of Legislative Functions. The second feature has been due, in a great measure, to the immense multiplication of legislative business through the augmentation of population, and the commercial and other development of the country. The feature alluded to is the increasing tendency on the part of Parliament to delegate its legislative functions on various subjects as regards matters of detail to persons, or bodies of persons, in whom it has confidence, being content itself to lay down the main principles of the new law. Thus, in the various reforms which have been made in the procedure of our law courts, the outline has been laid down by statute, and has been left to be filled up by rules made by the judges of the courts themselves, the statute having declared that such rules when made shall have the force of law. Again, large powers have been given to the Privy Council as a whole, and to the Board of Trade and Com- mittee of Council on Education, of making regulations on various important subjects placed under their control As an example of this may be cited the powers given to the Privy Council in 1869 of legislating as to the conveyance of and traffic in cattle, with a view to the prevention of disease. The powers with which the same body were formerly invested of framing rules for the preservation of public health, have now been transferred to the Local Government Board. And secretaries of state are oc- casionally empowered to make regulations on matters within their respective provinces. So far, indeed, has the practice been carried, that in certain cases Parliament 196 History of the English Institutions has latterly authorised the formation of public companies and construction of works of public utility, things which' were formerly always the subject of private acts, to be temporarily effected under the authority of provisional orders of the Board of Trade, requiring, however, that such orders should at an early date be confirmed by Act of Parliament. Most of the tramways now laid down in London and elsewhere were authorised by provisional orders of this description. The willingness of Parliament thus to depute its functions is intelligible, when we re- member that in most cases (that of the judges, of course, excepted), the persons to whom they are deputed are either themselves ministers of the Crown, or the nominees of ministers, liable to be changed upon a change of ministry, and they are, therefore, persons who, at the time, enjoy the confidence of Parliament, and will con- tinue to exercise those functions only so long as that confidence is accorded to them. Moreover, a check is retained over the exercise of this delegated legislation, by the practice of enacting that the rules, regulations, and orders, thus made under the authority of Parliament, shall be laid on the table of both Houses on the earliest practicable opportunity, and that if either House dis- approves of them within a given time afterwards, they shall cease to be in force. A less important form of delegation of legislative powers is to be found in the authority constantly given to companies to make bye-laws for the regulation of their own property and traffic. Simplified Form ol Legislation. The actual machinery of legislation has been much simplified since 1832, by the disuse of superfluities and redundancies in the language of the statutes, the reference to former Acts by short titles and by the numbers of chapters and sections, instead of setting out in full the enactments alluded to, Legislation 197 and by abandoning the repetition of the formal words of enactment in every clause. CHAPTER VIll, JUDICATURE. 1. Judicial power of King. With our present developed ideas on the subject of constitutional govern- ment, we are accustomed to look upon it as essential to the well-being of a state that the judicial and legislative functions should be entirely independent of each other. But in primitive political communities we usually find them lodged in the same hands. Indeed, in the formation of these communities the office of the judge has probably in most cases preceded in point of time that of the legis- lator, the latter office having subsequently become developed out of the former, and having for a long time remained united to it. In other words, private laws were made retrospectively in each particular case as it arose, by the decision of the judge upon it, before the idea was conceived of framing a general prospective law which should apply to a number of cases. Previously to the eleventh century many codes of general laws had been framed by the English kings and their witan, yet we gather from the coronation oath taken by the kings in the latter part of the pre-Norman period, that their judicial duties were still considered as among the most important of those attached to their office. In that oath the king promised three things to his subjects : 1st, That the Church of God and all the Christian people should always preserve true peace under his auspices ; 2dly, That he would forbid rapacity and all iniquities to every condition; 198 History of the English Institutions and, 3dly, That he would command equity and mercy in all judgments, in order that to him and his subjects the gracious and merciful God might extend His mercy. The judicial functions of the king consisted at this time in deciding appeals from the local courts noticed in ch. iii. ; and in trying military officers, and matters in which a high officer of state or a king's thegn was concerned, such persons being exempt from the local jurisdiction. The English kings had also adopted the practice of arbitrarily calling up to their own tribunal cases which had not yet passed through the local courts. And though crimes committed in a county were charged as breaches of the peace of the sheriff and not of the king's peace, yet the latter was so far deemed to be concerned in the maintenance of order throughout the realm, that in many cases while one-third of the fine payable for the offence went to the sheriff or the ealdorman of the shire, the remaining two-thirds were remitted to the king. In the exercise of his judicial functions the king was always assisted either by the whole Witenagemot, or by some selected members of that body. Procedure. The mode of procedure and form of trial employed in the king's court and in the shire-moot were much the same. We have already seen the number twelve, which was subsequently to become stereotyped in the institution of the jury, enter into the early English judicial system in the representation of the hundreds at the shire-moot (see p. 75). We find either it, or some multiple of it, appointed as the number of judges to try particular cases which had come before that assembly. Again, when a man was accused of having committed an injury, one of the modes of defence open to him was to purge his character by the oaths of twelve compurgators, if he could find that number to swear to his innocence. Judicature 199 This proceeding was called compurgation or wager of law. If the accused were a king's thegn (in which case he would be tried before the king himself), his compurgators must be so likewise ; if he were of a subordinate rank, it stifficed that his compurgators should be of the same rank with himself. The other mode of rebutting an accusation was by undergoing ordeal of either fire or water. The former consisted of taking up in the hand for a few moments a weight of red-hot iron, or walking barefoot over red-hot ploughshares, and the party was acquitted or condemned according as the blisters disappeared in three days or not. Water ordeal was confined, at any rate in later times, to defendants among the lower orders, who either were required to plunge their bare arm up to the elbow in boiling water, or were cast into a river or pond, innocence being determined in the first case by the absence of injurious consequences, in the second, by the individual sinking at once to the bottom. The ordeal by boiling water was evidently of a more serious character, and afforded less opportunity for evasion or collusion than that by fire. Another mode of refuting an accusation was by corsned, the accused person eating a piece of barley bread, with solemn oaths and imprecations that it might prove poison, or his last morsel, if his denial of the charge were false. It must not, however, be supposed that these methods of compurgation, ordeal, and corsned were always resorted to for the determination of judicial suits. In many cases, particularly where rights of property were in dispute, the question was decided in a rough and ready way, the judges and members of the moot deciding according to the previous personal acquaintance with the facts of the case, which they might possess as inhabitants of the dis- trict in which it occurred. The different value attached 2OO History of the English Institutions to the oaths of witnesses according to their rank has "been already noticed (pp. 4, 6). 2. Jurisdiction of King. Our judicial system underwent several important changes at the Conquest. Like every other institution of the country, it became tinged with the continental feudalism then introduced. Besides the appellate jurisdiction hitherto possessed by the English king, all matters in which his immediate vassals the barons, higher ecclesiastics, and tenants in capite were concerned, now came before him as the sovereign feudal lord, in his feudal court. A distinction was made between placita coronce, or pleas of the Crown, cases where the interests of the king were involved, and communia placita, or common pleas, causes in which the matter was only between subject and subject. The former were very soon considered to embrace all prosecu- tions for crimes and offences. Where these were punish- able by the local tribunal of a lord or of the sheriff, they were said to have been committed against the peace of the lord or sheriff, as the case might be. But, as has been pointed out in ch. iii., this local criminal jurisdiction was gradually abolished ; and at length, except in the counties palatine, all crimes were held to have been com- mitted against the peace of the king, his crown and dignity. The feudal court for the exercise by the king of his judicial functions, was, according to feudal theory, composed of the whole body of his vassals, who were supposed to aid him in the trial of causes. It was, in short, his Great Council, L which thus took the place of the old Witenagemot, in judicature as well as in legislation. But the meetings of this council, which ought to have been held every Christmas, Easter, and Whitsuntide, were, in fact, during the early Norman reigns, very irregular ; Judicature 201 and, just as before the Conquest, the judicial functions of the witan had of necessity been deputed to a select num- ber of their body, so now it was found impracticable to bring all causes before the whole assembly of the Great Council. Nor could the king himself assume in all cases his theoretical position of presiding judge. For, independently of his prolonged absences in Normandy, in all criminal indictments he was named as prosecutor, and many of the causes which came into his court were actually such as more or less involved his own private interests, and could not therefore with decency be decided by himself. Accordingly, there was rendered necessary the appoint- ment of a new officer, called J3hief Justiciary, who, besides other functions which will be mentioned hereafter, exercised, in the place and name of the king, the highest judicial power; the prerogative of jpardon being alone retained exclusively in the hands of the sovereign. For judicial purposes the Chief Justiciary was placed at the head of the Concilium Ordinanum, described in ch. vi, which met at Christmas, Easter, and Whitsuntide, as the Great Council was supposed to do, but for a longer time, and sometimes also at Michaelmas, at the city where the king happened at the time to be. Hence the origin of the four law terms Hilary, Easter, Trinity, and Michaelmas. Not only did it decide matters_afiectiiig the Crown, but it also entertained common pleas or suits between subject _and subject, a fine being exacted for leave to bring such suits before it. In respect of its judicial functions the council was called the Aula Regis or Curia Regis ; and, when required to deal with matters of revenue or finance, it adjourned to another part of the palace, and was called Curia Regis ad Scaccarium, or King's Court of Exchequer, its members being styled in this capacity, Barones Scaccarii, or Barons of the Exchequer. 2O2 History of the English Institutions Severance of Common Law Courts. In the year 1178, Henry II. reduced the number of judges in the Curia Regis from 18 to 5, and reserved a right of appeal from the Curia, whose decisions had hitherto heen final, to himself in his Concilium Ordinarium, from which the Curia became thenceforth detached. The latter, how- ever, continued to follow the king and sit where he happened to be. To remedy the inconvenience which this occasioned to private suitors, there was inserted in Magna Carta the article, " Common pleas shall not follow our court, but shall be holden in some place certain." Thenceforth the Curia became divided into two branches the Curia Regis proper, or Court of King's Bench, for pleas of the Crown, and the Court of Common Pleas for suits between subjects, which always sat at Westminster. About the same time the Curia Regis ad Scaccarium was formed into a separate tribunal, and dis- tinct functionaries appointed as its judges. That this court sometimes wrongfully assumed the decision of com- mon pleas, appears from st. 28 Edw. 1 (Art. sup. Cart.), c. 4, which prohibits the violation of the Great Charter in that particular. As an appeal was held to lie from all inferior courts to the Curia Regis proper, the latter received appeals from the Exchequer until Edw. 3's reign, and from the Common Pleas for a considerable time after- wards. Jurisdiction of Chancellor, &c. Other members of the Concilium Ordinarium were gradually entrusted with distinct judicial functions. Chief among these was the Cancellarius, or Chancellor, usually an ecclesiastic, and the keeper of the king's conscience as well as of the Great Seal, who, by virtue of his office, was charged with the duty of redressing, on behalf of the king, the wrongs Judicature 203 of suitors whom the ordinary courts might, from the nature of the case, be unable to assist. He, like the judges of the King's Bench, followed the king, and held Ms court wherever the latter happened to be (28 Edw. 1, c. 5). After the abolition, in Edw. 1's reign, of the office of Chief Justiciary, 1 the Chancellor became the highest judicial functionary of the land, through whom the king exercised his prerogative of appointing all the other judges and justices. Again, military offences and offences com- mitted out of the realm were tried by the Constable and Marshal of England in the Court of Chivalry : and the Court of the King's Steward and Marshal was entrusted with the decision of causes arising within the verge or limits of the king's palace; but it arrogated to itself a much more general jurisdiction, until checked by st. 28 Edw. 1, c. 3. Justices in Eyre. But besides all these courts, there was another way in which the royal authority was exer- cised in judicial matters, namely, l)j justitica itinerantes, or justices in eyre itinerating justices, who were sent to administer justice in the different counties. The plan of circuits throughout the country, both for financial and for judicial purposes, by officers bearing the king's commission, is as old as Hen. 1's reign; but it was not until Hen. 2's reign that the practice became systematic and continuous; and for a long time the details with which it was carried out were perpetually varying. In 1168 the number of justices in eyre was four. In 1173 the kingdom was divided for financial purposes into six circuits, three justices being appointed for each. Six years later we read of a division of the country for judicial purposes into four parts; 1 The office was, however, as to some of its judicial duties, continued in the person of the duel' Justice of England, the head of the Court of King's Bench. 2O4 History of the EnglisJi Institutions and this arrangement was in turn superseded by others of an equally fleeting nature. The primary judicial duty of the justices in eyre was, no doubt, the decision of causes in which the Crown was concerned. These were still tried in the county courts, but under the presidency of the justices, and not of the sheriff or other local officer; it being at length expressly laid down by the Great Charter, that no sheriff, constable, coroners, or bailiffs should hold pleas of the Crown. But the jurisdiction of the justices became gradually extended. The same charter provided that the king, or in his absence from the realm his Chief Justiciary, should send two justiciaries throughout every county four times a year, to take, with four chosen knights of the shire (see p. 207), the assizes or recognitions in suits about land. In sub sequent confirmations of the Charter the circuits were limited to one a year ; the assizes were to be taken only in the county where the land in dispute was situate, or, if the cause could not be finished during the stay of the justiciaries in the county, it might be concluded at some other place on their circuit ; and difficult points were to be referred to the justiciaries de banco, the judges sitting in the Court of King's Bench. The judges on circuit had not at this time power to try common pleas; and for general business, other than the assizes of land and criminal matters, the circuits appear to have been only septennial A change was, however, made in these respects by the statute of Westminster the second (13 Edw. 1), c. 30. Thenceforth two justices were to be appointed, who, with two of the discreetest knights of the shire into which they should come, should try assizes and attaints not oftener than thrice a year ; and they were empowered to try other civil causes, such as trespasses and the like ; but were required to adjourn questions of special difficulty for Judicature 205 the consideration of the justices of the Bench. The results of all the trials on circuit were also to be certified to the Bench, where alone judgment could he given. The trials of these ordinary civil causes were called nisi prius trials, from the fact that the juries to he engaged upon them were to appear before the justices of the Bench at the central court on a stated day, nisi prius justiciarii it iner antes venerint in comitatum, " unless the justices in eyre should previously come into the county," which, in fact, as the circuits were held at regular intervals, always happened. Ecclesiastical Courts. The severance of the eccle- siastical from the civil judicature, which took place at the Conquest, has been already noticed (p. 15). An attempt was made to re-unite them by Henry I., but Stephen again conceded, to_tlic rlcr^y the independence of their own courts, which at length claimed jurisdiction in all causes in which any member of their order was concerned on either side, notwithstanding that the opposite party might be a layman. The judicial anomalies, to which this undue exercise of clerical authority gave rise, were increased by the practice of carrying appeals from the ecclesiastical courts to Eome. and led in 1164 to the passing of the Constitutions of Clarendon^jyhich jestablished the amena- biHty_of the clergy to. the temporal courts, in civil and criminal cases, and prohibited appeals to Eome. But the excessive severity of the punishments at this time in- flicted by the common law led men to look favourably upon the milder ecclesiastical, or canon law ; and it was probably owing to this^that the Constitutions of Clarendon 5 remained but for a short time in force, and the clerical (>vUf "" _ courts speedily succeeded in recovering their former juris- diction, jp. Procedure. But while such were the changes made 2o6 History of the English Institutions after the Conquest in the constitution of our tribunals, no less important were those made in the forms of procedure. In the first place, a new mode of trial was introduced, that of duellum, bellum, or wager of battel a trial by combat to which recourse might be had in a military cause, or by a person accused of felony by a private individual, in the proceeding called an appeal of felony, and which was also, until the reign of Hen. 2, the only mode of determining a suit by writ of right, the regular form of suit for the recovery of land. The combat was carried on with batons or clubs and leathern targets, from sunrise till the stars appeared, due precautions being taken against any unfair advantage through sorcery on either side. In suits about land, champions were appointed by the two parties to fight for them ; and if the defendant's champion prevailed, or even maintained his ground, the plaintiff lost the suit, otherwise he recovered the land. If either champion proved recreant and yielded, he was for ever disgraced, and lost his civil rights his status as a liber et legalis homo. On the other hand, in trials for felony, the parties fought in person, unless physically incapacitated, in which case a champion was allowed. If the prosecutor yielded, he was disgraced ; if the accused was slain or yielded, he was deemed to be convicted of the felony, and suffered attainder, and, in the latter case, was immediately hanged. This mode of trial did not exist in boroughs, and rapidly fell into disuse in the counties. 2 For, owing in part to the penalties imposed upon the party appealing, in case he failed to prove the guilt of the accused, appeals of felony by persons individually injured by the crime were soon almost entirely superseded by the method of pro- ceeding by indictment at the prosecution of the Crown, * It was not, however, actually abolished until 1819 (59 Geo. 3, c,46). Judicature 207 in which wager of battel was not admissible : and for deciding writs of right as an alternative at the option of the defendant to the wager of battel Henry II. intro- duced into counties the Grand Assize; the proceedings in which were as follows : The sheriff summoned out of the neighbourhood of the disputed land four knights of the shire, who should under oath select twelve other knights from the same neighbourhood, and ttfese last were to decide upon their oaths which of the litigants had the better right to the land. Such was the earliest distinct establishment of the jury system in our law. This practice of recognition, as it was called, was also introduced by Henry II. into other suits affecting land, with the difference, however, that the twelve knights were to be summoned directly by the sheriff. And by the assize of Clarendon, in the same reign, recognition was extended to criminal matters. Twelve lawful men of each hundred, and four of each township (the numbers, be it observed, which of old had represented the hundred and township in the shire-moot), were required to present upon oath to the judges and to the sheriffs persons accused of committing or abetting robbery or murder in their district. This was the germ, not of the common, but of the grand jury ; for the pre- sentment was not considered conclusive evidence of guilt, and was followed by an ordeal by water. The members of this grand jury seem to have been originally nominated by the sheriff ; but this power being sometimes abused, the assize of 1194 ordained that in every county four knights should be appointed, probably still by the sheriff, and these were in every hundred to choose two knights, who should select ten more knights, or lawful men, to form with themselves the jury for the hundred. In Magna Carta the four knights are spoken of as elected 2o8 History of the English Institutions by the county. In that great compendium of our constitu- tion, as well as in the frequent confirmations of it down to 25 Edw. 1, there were inserted many provisions for the due administration of justice to the king's subjects. Besides the general promise, "We will sell to no one, 'we will not deny or delay to any one right or justice," * there was a declaration, that fines should be apportioned to the heinousness of the offence, and should only be inflicted upon the oath of trusty men of the vicinity. i~The interests of the nobility were protected ; " Counts ; and barons shall not be amerced except by their peers, and then only according to the degree of the offence" : and the liberties of the commonalty at large were pro- vided for by the famous clause cited in ch. ii. (p. 18). The cases in which trial by jury could be avoided by the alternative left in the few concluding words of that clause became gradually diminished by the disappearance of the older modes of trial. Compurgation, or wager of law, fell into gradual disuse in the counties, through the adop- tion, in criminal matters, of the system of presentment, and, in civil causes, of forms of action in which resort to it was not allowed, though it was retained in some boroughs until long afterwards. 4 The gradual abandon- ment of trial by battel has been already noticed. Ordeal was abolished in 3 Hen. 3, and this rendered necessary the trial of the accused individual by a second or petty jury in its place, after he had been presented by the grand jury. This second jury was at first, like the grand jury, supposed to decide the guilt or innocence of the accused from previous knowledge of the facts, and was therefore chosen from the district where they had occurred. The 3 c. 40, Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam. 4 Wager of law was finally abolished by st. 3 & 4 Will. 4, c. 42, s. 13. Judicature 209 same individuals were, in fact, witnesses and jury. During the following reign, in both criminal and civil matters, the practice was introduced of afforcement of the jury, that is to say, of calling in persons acquainted with the matter in controversy by way of substitution or addition in cases where the original jurors or recognitors were found to be ill informed upon it. The province of the jury was in all cases confined to the determination of the facts at issue, questions of law being either decided by the justice who presided at the trial, or, in cases of difficulty, referred by him to the judges of the Bench ; according to the maxim of our law, De qtuBstionibus juris respondent judices, de quces- tionibus facti juratores. The decision of points of law, as opposed to those of fact, was after the Conquest hedged in by an elaborate and over-technical system of pleading, to which, in addition to its inherent difficulties, was superadded that of being, until 1362, expressed in Norman French instead of the native English of the people. Hue and Cry. The principle of the liability of a district for a crime committed within it, or by one of its inhabitants, continued to be recognised after the Conquest, but in Edw. 1's reign the hundred was fixed as the unit of liability. When a robbery or felony was committed within its limits, its members were required to pursue the offender with horn and voice, or hue and cry, as it was technically termed, on horseback and on foot, under the guidance of the constables. And a person robbed could, if the robber escaped, recover damages from the hundred for the loss which he had sustained. English Common Law. Notwithstanding all the alterations in the law which took place at the Conquest, so large a portion of the old English law remained as to ENG. 1JJST. O 2IO History of tJie English Institutions constitute, with the customary law which the Normans brought over from Normandy, a system known as the common law of England, and differing widely from the laws of continental nations, which are mainly based on the Eoman civil law. 3. Jurisdiction of Courts. It has been seen that the exercise of the king's judicial powers was shifted first from the Great Council to the Concilium Ordinarium, and then to distinct courts formed out of the latter. The in- dependence of the judges of these courts was affirmed by st. 20 Edw. 3, c. 1, which declared that the king had commanded all his justices (including the barons of the Exchequer) to do equal right to all his subjects, rich and poor impartially, disregarding any letters, writs, or com- mandments to the contrary which they might receive from the king, or from any other quarter. In the same reign the Court of Exchequer Chamber, consisting of the chancellor, treasurer, and judges of the King's Bench and Common Pleas, was constituted to hear appeals by writ of error from the Court of Exchequer. Judicial functions were, however, still held to reside in, and were actually exercised by, not only the ordinary council, but also the Great Council, and afterwards the assembly which took its place, the High Court of Parliament. They were formally taken away from Parliament, as a whole, by st. 1 Hen. 4 ? c. 14, which enacted that no appeals should thenceforth be made or pursued in Parlia- ment. But the Upper House, the lineal successor, so to speak, of the Great Council, and through it of the Witen- agemot, continued not only to entertain and decide appeals from the decisions of the other courts, but also to entertain in the first instance questions respecting civil injuries which were brought before it in the form of peti- Judicature 2 1 r tions for redress. This latter jurisdiction, which, was in fact a species of private legislation, seems to have fallen into disuse when Bills took the place of petitions in par- liamentary procedure, and with the exception of certain isolated instances, which will he mentioned hereafter, the only remaining case in which the Lords continued to exercise judicial powers in the first instance, was that of the criminal proceeding called J,mpea$hment. In this proceeding the House of Commons appears as prosecutor, on behalf of the nation whom it represents, and the Lords are thejudges. A lord can be impeached for any capital joffence, for the judges to try him will be his peers ; but a commoner only in the case of high misdemeanours or offences against the State, in respect of which, and of which alone, the Lords are considered as the peers of the whole nation. This was laid down in JL37 upon the q very first instance of impeachment that of Lord Latimer and certain other lords and merchants. The jurisdiction of the chancellor as a separate judge has already been noticed ; but it was at first exercised by him merely as one of the members of the council, and was in fact considered as part of the jurisdiction of that body. The existence of his court, as the Court of Chancery, competent to give relief to suitors independently of the council, dates from the latter part of Edw. 3's reign. The same reign witnessed the severance from the council of another court, the_Court of Admiralty, for the trial of maritime causes, presided over in theory by the Lord High Admiral of England, while an officer of that name existed, but in fact by a judge sitting as his deputy. This court having occasionally to deal with cases affecting foreign states and their subjects, administered not the English common law, but a mixture of the canon or civil law, and a maritime law generally agreed to by the Euro- 212 History of the English Institutions pean nations. In 13 Ric. 2 it was found necessary to pass statutes restraining both this court and the Court of the Constable and Marshal from meddling with matters cognisable by the common law. But the creation of these new courts did not, any more than that of the common law courts, deprive the king's council, as a whole, of its judicial powers. A general right of appeal to the king was still held to exist, and it was in the council that he usually heard the appeals. Attempts were made by the Commons, in the reigns of the three Lancastrian monarchs, to limit this appellate jurisdiction of the council, but without success ; and in 1487, by st. 3 Hen. 7, c. 1, a new original jurisdiction was given to the chancellor, treasurer, and keeper of the privy seal, or two of them, with a bishop and temporal lord of the council, and the chief justices of the King's Bench and Common Pleas, or two other justices in their absence, to try murders and injuries to the person, robberies, perjuries, and violent ejectments of lawful owners from their lands, with power to punish the offenders as if they had been convicted in due course of law. Thus by Act of Parliament were expressly given to a specified committee of tlie council [lowers which were afterwards ext-n-iseil by the whole body, or members specially delegated by itself, in its famous court of the Star Chamberj and a later Act, 31 Hen. 8, c. 8, empowered that court by name to punish disobedience to royal proclamations by fine and imprisonment. Trial by Jury. The reason for establishing the court created by st 3 Hen. 7, c. 1, is stated in that Act to be that the course of justice was prevented by the practice of colluding with and abetting offenders, empanelling partial juries, corrupting jurors by bribes, and creating note and unlawful assemblies at trials. Judicature 213 It was the prevalence of these evils due, no doubt, in great measure to the disorders arising from the civil wars of the Roses which induced Parliament thus to supersede the repeated enactments which had been passed in Edw. 3's reign to ensure that no one should be brought before the king or council except by indictment or presentment of good and lawful people of the same neighbourhood, nor should be imprisoned or deprived of his lands or franchises except by due proceeds of law, nor be fore- judged of life or limb, or have his property seized against the form of the Great Charter and the law of the land (5 Edw. 3, c. 9 ; 25 Edw. 3, st. 5, c. 4 ; 28 Edw. 3, c. 3 ; 42 Edw. 3, c. 3). The fact was that the working of the jury system, which had never been extended to proceedings before the council, or in the Courts of Chancery and Admiralty, was found in the common law courts to be attended in practice with many drawbacks. It is true that it had by this time reached an advanced stage of theoreti- cal development. As early as Edw. 3's reign the jury had begun to abandon their joint character of being wit- nesses as well as judges of the fact, and to receive other evidence besides that of the prosecutor or plaintiff and their own. The first step towards this was the separation of the afforcing jurors (see p. 209) from those originally chosen. The former thus assumed the position of wit- nesses. A full account of the system as it existed in the reign of Hen. 6 is given by Lord Chancellor Fortescue, in his work, "DeLaudibusLegum Anglise" (chaps. 25-32). It appears that special juries were at that time summoned for the trial of each particular cause; for, though wit- nesses were adduced, it was still deemed essential that the jurors should be taken from the neighbourhood of the matter at issue, that they might avail themselves of 214 History of the English Institutions their personal knowledge both of the facts in question and of the credibility of the witnesses. The jurors were to be good and lawful men, and men of substance; and either party was allowed to challenge the array, or object to the panel of jurors summoned on the ground of partiality. A person tried for his life might arbitrarily challenge and strike off the panel as many as thirty-five without assigning a reason. But all these precautions were in many cases insufficient to secure a fair trial Eepeated Acts were in vain passed to check the practice of bribing the jurors; nor was the mischief effectually restrained by their liability to a writ of attaint for giving a false verdict, upon which, if found guilty by a jury of twenty-four, they were to lose all their property and civil privileges, and become for ever infamous; they were to be themselves imprisoned, to have their wives and children cast out of doors, their houses rased, and their trees cut down and meadows ploughed. 4. Ecclesiastical Courts. At the Reformation the sovereign acquired a new judicial power, by the transfer to him of the appellate jurisdiction over the ecclesiastical courts which had formerly been exercised by the Court of Rome. St. 25 Hen. 8, c. 19 directed that appeals from the archiepiscopal and other ecclesiastical__courts, from which appeals had formerly lain direct to 'Rome, should be made to the king in Chancery, and should be heard by commissioners appointed by the king unde.r the great seal to try the case, whose, decision should be liual. These commissioners, whenever appointed, constituted what was called the High Court of Delegates. They were usually Jbhree puisne judges, one from each of the common law courts, together with three or more civilians or persons versed in the civil law. In special cases, how- Judicature 2 1 5 ever, the commission was strengthened by the addition of spiritual and temporal peers, the number of each being for the most part three. By st. 8 Eli/., c. 5, a provision / similar to that of st. 25 Hen. 8, c. 19, respecting ecclesias- tical appeals, was made as to appeals in Qivil and marine causes, for which the High Court of Delegates was thus constituted the final tribunal But besides this appellate ecclesiastical jurisdiction, the Act of Supremacy (1 Eliz., c. 1) empowered the queen to appoint commissioners with an. .original jurisdic- .tionj.n m lesiastical. And this was occasionally done previously to 1583, in which year a commission was issued to certain bishops, privy councillors, clergymen, and civilians,giving them _full powers to inquire into and /punish by fine and imprisonment immorality, heresy, and offences against, the- Acts of Supremacy and Uniformity. These commissioners and their successors constituted what was called the Court of High Commission : which, in matters within its province, gradually rivalled the arbitrary and oppressive proceedings of the Star Chamber, and inflicted the same cruel punishments as that court. It shared the fate of the Star Chamber in_1640, and the Act which abolished it contained provisions which in effect neutralised the jurisdiction of all the other eccle- siastical courts. These provisions were repealed after the Restoration, but with an express saving against the revival of the Court of High Commission. ^The saving was, however, disregarded by -lames II., who issued a very simijajr ^commission in 1GSG, which led to another and linal con- demnation of such commissions after Jhe Revolution. 4 The continuance of the punishment of burning for heresy after the Reformation, and its final abolition in Cha. 2's / 7 reign, have been noticed in ch. ii. (p. 28). 2i6 History of the English Institutions Star Chamber. By the establishment of the Courts of Delegates and High Commission, and the increased importance of the Courts of Chancery and Admiralty, the jurisdiction of the council's Court of the Star Chamber became, almost exclusively confined to criminal cases those mentioned in the Act of 3 lien. 7, and others over which it assumed cognizance. It asserted the dangerous and indefinite right of jtryjng all offences which were not punishable by common law, such as corruption, breaches of trust, malfeasance in public affairs, and other political transgressions j and having power to^ inflict any penalty short of death, it by degrees added to those of fine and imprisonment the more cruel punishments of the pillory, whipping, branding, and cutting off the ears. It also introduced into its proceedings examination by torture, which was unknown to the English common law. Similar powers were exercised locally by the Court of the Chancellor and Council of the Duchy of Lancaster, the Exchequer Court of the County Palatine of Chester, the Court of the Council of Wales erected in 1542 to repress disorders in the principality and adjoining counties, and notably by the Court of the Council of the North. This latter council was established after the insurrection of. j.536, as a court of criminal jurisdiction in Yorkshire and the four more northern counties, to try cases of riots, con- spiracies, and acts of violence. It had also a jurisdiction in civil suits where either party was too poor to bear a _process at common law, and its powers were immensely increased by a commission issued by Charles I. at the instance of Sir Thomas Wentworth, afterwards Earl Strafford. Not content with the judicial powers exercisable directly by the Crown through the medium of these courts, Charles L, in the first years of his reign, issued Judicattire 217 commissions for taking proceedings _by martial law in different parts of the country against soldiers, mariners, and persons joining with them, who should commit murder, robbery, felony, mutiny, or other outrage or mis- demeanour. The Petition of Eight (3 Cha. 1, c. 1) com- plained that by reason of these commissions some persons had been put to death who, if they had deserved death, ought to have been judged and executed by the law of the land, and others had escaped punishment owing to judges having unjustly refused to proceed against them according to law, under the pretext that they were punish- able only by the commissioners according to martial law; and after condemning such commissions as contrary to the laws of the realm, it prayed that they might be revoked and annulled, and none of a like nature be there- after issued. One of the first acts of the Long Parliament in 1640 was to abolish the Court of Star Chamber, together with every court of similar jurisdiction, on the ground that its judges had exceeded the powers given to them by ]aw, that its proceedings had been found to be an intoler- _able burden to the subjects, and the means of introducing an arbitrary power and government, and that all matters determinable in it ^cpuld be redressed at common law. Besides the abrogation which was thus effected of all the criminal power of the Privy Council, it was enacted that whereas the council had of late assumed power to inter- meddle in civil causes and matters between party and party, in future neither the king nor the council should have power, by petition, articles, or other arbitrary pro- ceeding, to inquire into or dispose of the lands or goods of any subject of the kingdom. ^Thenceforth all legal proceedings, whether criminal or civil, have been admis- sible only in the ordinary courts of justice, and according 2 1 8 History of the English Institutions to the due course of law, except only in those special cases in which Parliament has claimed and exercised the right to interfere, and which will be noticed later (see p. 219). Courts of Law and Equity. "With regard to the regular legal tribunals themselves, the relations between the courts of common law and the Court of Chancery were not at the time of the Reformation very accurately defined. But the equitable .jurisdiction, of the chancellor became consolidated in the sixteenth and seventeenm oftntyrifts ; and his right to interface with actions in pro- gress in the common law courts, and even with judg- ments actually given in them, where, owing to the tech- nicalities of their mode of procedure, they were unable to mete out true justice in the matter, was finally settled in Ja. 1's reign. The right was vehemently opposed by Sir Edward Coke, chief justice of the King's Bench, and at his covert instigation indictments were on one occasion actually preferred against parties who had applied to the Court of Chancery for relief in a matter which had been decided by the King's Bench, and who had procured a defaulting witness, whose absence had occasioned the failure of the common law action, to be committed for contempt by the chancellor. But James directed the attorney-general to proceed in the Star Chamber against the promoters of the indictments, and made an order in the council book, declaring that the chancellor had not exceeded his jurisdiction; and the' power of the Court of Chancery to override the common law courts has never since been questioned. Notwithstanding enactments in the thirteenth and fourteenth centuries to the contrary (see p. 202), it was in process of time found convenient to give all the three common law courts a concurrent power of trying private Judicature 219 suits. This was effected by means of legal fictions. If it was desired to try a common plea in the King's Bench, the commission of a trespass in connection with it was, by consent of both parties, alleged, and this being a breach of the king's peace gave that court jurisdiction in the matter. Again, the Court of Exchequer had properly a common law and equitable jurisdiction only in cases affecting the king or his debtors ; but on a feigned allega- tion that the plaintiff was a debtor to the king, and pre- vented from discharging his debt through the wrong done him by the defendant, the court would entertain an action at common law or a suit in equity between private individuals. Parliament. In proportion as legislation became more and more recognised as the exclusive province of Parliament, the separation between it and the judicial power in the constitution, which is at the present day looked upon as an essential guarantee against tyranny and injustice, tended to become more and more defined, though it did not attain to being absolutely complete. For, besides the existence of the parliamentary judicial proceeding of impeachment, each House of Parliament continued to exercise the right of punishing its own members and persons who refused to attend to its summons, or offended against its privileges. ]S^or was this all Cases from time to time occurred in which the Commons committed individuals to custody during the continuance of the session for political offences uncon- nected with themselves. The latest instance of this was the commitment of the printer Mist in 1721 for printing a Jacobite newspaper. Their practice has since been to direct a prosecution of the offender by the attorney- general The Upper House sometimes went further, and imposed fines upon political offenders, and even sentenced 22O History of the English Institutions them to the pillory (an instance of which occurred so late as Geo. 2's reign), and to imprisonment extending beyond the duration of the session. In 1621 they condemned one John Blount to imprisonment for life with hard labour in Bridewell Another mode in which Parliament has exercised quasi-judicial functions has been by passing Bills of attainder, inflicting in individual cases death, corruption of blood with its attendant consequences on descendants, and other pains and penalties. But this proceeding must be regarded as at any rate, in form of a legislative, and not of a judicial character. House of Lords. The appellate jurisdiction of the House of Lords was definitely settled in the seventeenth century, during the course of which its claim to original jurisdiction was finally abandoned; and, on the other hand, it for the first time received appeals from the Court of Chancery. It had previously done so only from the com- mon law courts, appeals from which first passed through the Court of Exchequer Chamber, whose jurisdiction had been enlarged in Eli /.'a reign, the barons of the Exchequer being added to its judges. As regards courts in which the civil law was administered, such as the ad- miralty and ecclesiastical courts, it had become recognised that the right of appeal was not to the Lords, but to the king; and they therefore, in 1678, refused to hear an appeal from the Court of Delegates which the king had con- stituted as the highest appellate tribunal in such cases. With respect to the peers who hear the appeals, it has long been the established practice that only those take any active part in the proceedings who have personally held, or are at the time actually holding important judicial posts (11 CL & F., 421-426). Judges. Independently of the existence of arbitrary Judicature 221 courts, there were in the ordinary courts of justice pre- viously to the Revolution many elements favourable to judicial tyranny. Foremost among these was the fact that the judges of the common law courts not only vacated their seats on the bench upon a_deniise of the Crown, and only resumed them if reinstated by the new Tung/but also, at any rate during the reigns of the Stuarts, were almost invariably appointed to hold office durante beneplacito, " during the pleasure of the king," so as to be at any moment arbitrarily removable by him. It is only surprising how, under these circumstances, the judges were ever able to act counter to the wishes and directions of the sovereign. The degree of subserviency to which they were reduced cannot be better illustrated \/ than by their conduct in the case of the commendams in _Ja..l'8. reign, in which the king's prerogative of granting a benefice to a bishop to be held in commendam, or along with his bishopric, was called in question. The judges of all the courts having received a letter from the king, desiring that they would not give judgment in the matter until he had spoken with them, replied that they were bound by their oaths not to regard any letters that might come to them contrary to the law, and that they had there- fore proceeded in the cause notwithstanding the letter. Upon this they were all summoned to the council cham- ber, and, with one exception, promised in future to stay proceedings in a cause when the king desired to consult with them upon it as affecting his interests. Sir Edward Coke alone answered, that when the case arose he would do what it was fit for a judge to do, and was, in conse- quence, shortly afterwards suspended and dismissed from his office of chief justice of the King's Bench. Juries. If such was the dependent position of the judges, that of juries was hardly less so, owing to the 222 History of the English Institutions power exercised by the Star Chamber of punishing them if they discharged then- functions unsatisfactorily, a power which was frequently exercised after an acquittal on a charge of treason. And in Cha. 2's reign, when the "Star Chamber was no more, a grand jury was on one occasion summoned before the King's Bench and repri- manded for having found a bill of manslaughter instead of murder. There are also instances of jurors being fined by the judge for acquitting against his direction. But the House of Commons in 1667, and the judges them- selves about the same time, passed resolutions that such a proceeding was illegal, and no case of it has occurred since 1670, when a juror who was imprisoned for non-payment of the fine obtained his release by Habeas Corpus. Besides what the jury system suffered from the influence thus exerted upon jurors, many causes were withdrawn altogether from trial by jury by being brought before courts where that institution did not exist. . As regarded crimi- nal cases, this practice of dispensing with juries was abolished by the overthrow of the Courts of Star Chamber and High Commission ; but it continued to prevail with respect to all the civil cases decided in the Court of Chancery, in which the institution of juries was unknown, and the jurisdiction of which was continually on the increase. 5. Bill of Rights. The Bill of Eights at the Revo- lution declared that the commission granted by Ja. 2 for erecting a court of ecclesiastical commissioners, and all other similar commissions and courts, were illegal and per- nicious ; that excessive bail ought not to be required in judicial proceedings, nor excessive fines imposed, nor cruel and unusual punishments inflicted ; that jurors ought to be duly empanelled and returned, and ought, in trials for Judicature 223 high treason, to be freeholders ; and that all grants and promises of the fines and forfeitures of particular persons, before conviction, were illegal and void. Judges. The Act of Settlement (12 & 13 WilL 3, c. 2) effected a most important alteration in the position of our judges, by enacting that, after the devolution of the crown on the Princess Sophia of Hanover, or her issue, the commissions of judges should be made quam diu se bene gesserint, or during good behaviour, and fixed salaries be paid to them during their continuance in office ; but they were to be removable upon an address of both Houses of Parliament. This enactment was confirmed by st. 1 Geo. 3, c. 23, after a declaration in the king's speech at the opening of the session that he looked upon the in- dependence and uprightness of judges as essential to the impartial administration of justice, as one of the best securities for the rights and liberties of the subjects, and as most conducive to the honour of the Crown ; and it was further provided that the judges should continue in office notwithstanding a demise of the sovereign. This change in the status of the common law judges has made them, as they ought to be when once appointed, independent of the executive and of politics; but, notwithstanding their independence was thus secured, their connection with politics was not finally broken off. Although they had been from the earliest times debarred from sitting in the House of Commons, there was nothing to prevent their being raised to the peerage and sitting in the House of Lords. Indeed, this honour has been xisually conferred on the Lord Chief Justice of England, and it has sometimes been extended to the chiefs of the two other courts. As members of the Legislature, both Lord Mansfield and Lord Ellenborough, in the early part of the present century, entered the Cabinet, and became 224 History of the English Institutions ministers of the Crown. But since the time of the latter, no instance has occurred of any judge, except the Lord Chancellor, thus taking part in the executive government ; and with this one perpetual exception, even if the in- creased amount of labour attaching to the duties of judicial and ministerial offices did not render it impossible for the two to be united in one individual, public opinion at the present day would not tolerate such a union. The practice of the Crown consulting the judges and obtaining extra judicial opinions from them, which before the Revolution was carried to most pernicious lengths, was occasionally resorted to during the last century. But, although in certain special cases it appears to be not un- constitutional, it has now been completely abandoned, recourse being had by the Crown to its law officers, the attorney-general and solicitor-general, when it desires advice upon the legality of a proposed measure. Juries. Juries, like the judges, have since the Revo- lution been free from any coercion on the part of the Crown. Various regulations as to the mode of summon- ing them, and other matters concerning them, have since been made, but the only point which it is here important to mention is the reduction in the property qualification required of jurors. At the time of the Revolution only freeholders were qualified to act as jurymen, but a few years afterwards copyholders, and subsequently lease- holders, where the property was of a certain value, were rendered admissible, except in cases of high treason ; and ultimately, in 1825, this exception was swept away, and the qualification of jurymen for all cases was much re- duced. At the same time writs of attaint were abolished, and corrupt jurors and their corruptors were made punish- able on indictment or information. Parliament. The judicial powers of the two Houses Judicattire 225 of Parliament had previously to the Revolution become so well defined, except with regard to matters affecting themselves and their own members, that such matters were almost the only questions upon which a difference between them and the law courts remained possible. One of these, in the case of Ashby v. White, during Anne's reign, involved a conflict between the House of Lords, as the highest court of appeal, and the Lower House. It was an action by a burgess of Aylesbury again.st the returning officer for refusing to register his v(e at a parliamentary election; and the majority of the judges of the King's. JBeiicli. having held that the action could not be maintained, theJLords, upon an appeal to them bj writ of error, reversed this decision, and gave judgment fui'-Ashby. The Commons thereupon passed resolutions affirming their exclusive right to decide all matters_relating to the election of their memberaj but after the prorogation of Parliament, Ashby proceeded to execu- tion, and other persons brought similar actions against the returning officer. . When Parliament reassembled, the Commons^ Committed these parties to Newgate as for a breach of the privileges of the House, and when they applied to the King's Bench for a Habeas Corpus, the majority of the judges considered themselves unable to grant it against a commitment of the House of Commons. An appeal on the subject to the Lords by writ of error was prevented by the Commons resolving to commit the counselj,n.d attorneys engaged in the application for the Habeas Corpus, and addressing the queen not to grant the writ of error. This conduct of the Lower House led to strong resolu- tions on the part of the Lords in condemnation of it, and a fruitless conference took place between the two Houses. The difficulty was solved, as on other similar occasions, by a 226 History of the English Institutions prorogatiqn,_upon which the committed persons were, as a matter of course, set at liberty, as commitments by the Commons could not last beyond the end of the session. The queen announced that she would have granted the writ of error, but that the prorogation rendered it idle to do so. The courts of law distinctly recognised the right of the House of Commons to commit in the two famous cases of Mr Murray and Sir Francis Burdett. The former of these occurred in 1751. The high bailiff having ... complained of Mr Murray for insulting him when in dis- charge of his duty at the Westminster election, the Com- mons took upon themselves to hear the parties by counsel, and, after requiring bail from Murray for his appearance from time to time, ended by committing him to iNr.wgato, from which the judges refused to release him on a Habeas Corpus. On being discharged at the end of the session he was escorted home in triumph amid the applause of the people, but in the next session was again^pmmitted on the same charge. Again, in 1810, when the Commons had punished by commitment the publishers of an offen- sive placard announcing a discussion in a debating society upon the conduct of two of their members, they ordered Ix-lt -P Francis Burdett to the Tower for .denouncing the commitment and denying its legality in an address to his constituents ; and the Courts of King's Bench and Exche- quer Chamber, and the House of Lords, successively decided against him in actions which he brought against the speaker and serjeant-at-arms, to obtain redress for his imprisonment. Impeachment. The question, whether proceedings on an impeachment can continue_notwithstanding a proro- gation or dissolution, in respect of which there had been a conflict of practice before the Revolution, was decided Judicature 227 Jn the affirmative in the famous case of Warren Hastings, ' which, with the exception of Lord Melville's case, is the last instance of recourse to that mode of* procedure. The Act of Settlement affirmed what had been clearly laid down in the case of Lord Danby, that no pardon under the great seal should be pleadable in bar of an impeach- . meat by tin- Commons ill Parliament. ^} 6. Privy Council. In the year of the Eeform Act of 1832 the once dreaded judicial functions of the Privy Council were partially revived. The loss of judicial power sustained by the council upon the abolition of the Court of Star Chamber has been already noticed. That event did not, however, affect its jurisdiction over colonial causes. For inasmuch as no tribunal for the ultimate decision of these causes had ever been constituted by legislation, the king in council was held to have a final appellate jurisdic- tion in respect of them, in his general capacity of head of the judicature and fountain of justice. And when appeals were presented to him from the colonies, they were usually heard before a committee of the whole council, who made a report to the king, and judgment was then given by him in accordance with the report. The same method had been occasionally adopted in entertaining and deter- mining appeals on ecclesiastical and admiralty matters from the Court of Delegates, notwithstanding the declara- tion in the Acts of Hen. 8 and Eliz., that the decisions of that court should be final. The constitution both of the committees of the council for hearing appeals and of the Court of Delegates being unsatisfactory, Lord Brougham, in 1832^ procured the passing of an Act whichjtransferred the right of hearing and finally deciding appeals in ecclesiastical and marine matters from the king in chancery (see pp. 214, 5) to the 228 History of the English Institutions king in council. For the purpose of hearing these appeals, as well as all colonial and other appeals to the king in coun- cil, a committee was constituted in the following year, to be called "The Judicial Committee of the Privy and to consist of all members of the council who held for the time being, or had previously held, Jjhej3ffi.ee of presi- dent of the council, or one of the leading judicial offices, such as Lord Chancellor or chief of a common law court, and also of two other privy councillors appointed by the king. The committee were to make a report or recom- mendation upon the appeals to the king in council for his decision, as previous committees had done. The king was also authorised to refer to the Judicial Committee such other matters as should seem expedient, and they have accordingly been invested with certain powers in reference to copyrights and patents. By a later Act, every archbishop or bishop on the Privy Council was to be a member of the Judicial Committee, for the purpose of hearing ecclesiastical appeals j and when these came j before it, at least one archbishop was to be present. And the appointment of salaried members of the committee was authorised in 1871. Central Criminal Court. In 1834 a new court, called the Central Criminal Court, was established for the trial of offences committed in London and Middlesex, and certain portions of Essex, Kent, and Surrey. The judges who usually sit in this court are the common law judges and the recorder, common Serjeant, and judge of the Sheriffs' Court of London. The establishment of this court, which may at first sight appear inconsistent with the decentralising policy adopted as to civil matters by the erection of the county courts in recent times, was primarily rendered necessary by the enormous growth of the metropolis and its suburbs. Judicature 229 Probate and Divorce Court. Up to within a recent date the ecclesiastical courts possessed exclusive jurisdiction over testamentary and matrimonial matters, subject only to the interference of Parliament, which occasionally granted a divorce between parties by special private Act. But in 1857 all jurisdiction in these matters was transferred to the Crown, and a Court of Probate and Divorce was constituted to deal with them. Parliament. The conflict between the House of Commons and the courts of law in the case of Stockdale v. Hansard, has been already noticed (p. 152). In an action which grew out of it the power of the Lower House to inflict imprisonment was distinctly recognised. The action was brought by Stockdale's attorney, Howard, for assault and wrongful imprisonment, against Mr Gosset, the serjeant-at-arms, who, by order of the House, had taken him into custody. The Court of Queen's Bench decided in Howard's favour, but this decision was reversed in the Exchequer Chamber, and Baron Parke (afterwards Lord Wensleydale), in delivering the judgment of the court, affirmed what had before been laid down by Lord Camden, namely, that "the House of Commons is a part of the High Court of Parliament, which is, without question, not merely a superior, but the Supreme Court in this country, and higher than the ordinary courts of law " (Gosset v. Howard, in error, 10 Q. B. 456). The power of punishment has, however, of late been very sparingly exercised by Parliament. In 1838, for a much grosser libel on the House of Commons than many for which members had in former times suffered imprison- ment, O'Connell was merely reprimanded in his place in the House by the Speaker. Contempt. Akin to the right of Parliament to punish offences connected with itself is the power, which 230 History of the English Institutions the superior courts of law and equity have always possessed, of punishing by fine and imprisonment what is called contempt of court (see p. 45). This offence may be committed either by disobedience to the orders of the court, or by speaking or writing in derogation of its authority, or even by publishing, while a cause is in pro- gress, comments upon it calculated to prejudice the course of justice. Some of the most notable recent instances of it occurred in 1873 and 1874, in connection with the trial of the claimant to the Tichborne estates for perjury. Supreme Court of Judicature. In 1873 an Act was passed, which was to come into operation on the 2d November 1874, and which consolidated, as from that date, the Court of Chancery, the three common law courts, the Courts of Probate, Divorce, and Admiralty, and the London Court of Bankruptcy, into one Supreme Court of Judicature. This Court was to consist of two divisions: one of which, called "Her Majesty's High Court of Justice," was to deal with such matters as would previously have come before the different courts which were to be now consolidated, or before the Courts of Common Pleas of Lancaster and Durham, or the cir- cuit courts. The old distinctions between the courts were to be so far maintained, that the High Court of Justice was to be divided into five divisions, corresponding to and bearing the names of the consolidated courts (the Court of Bankruptcy being, however, merged in the Exchequer division). But all the divisions were to have concurrent jurisdiction to try any cause brought before them; except that certain specified matters, which had formerly been within the exclusive province of one of the old courts, were by the Act specially assigned to the corresponding division of the new court The other division of the 5 Its commencement was subsequently postponed to 2d Novem- ber 1875. judicature 231 division of the new court. The other division of the Supreme Court was to be called "Her Majesty's Court of Appeal," and was to hear appeals from the decisions of the High Court of Justice, just as the appellate Courts of Chancery and Common Law, and the Judicial Committee of Privy Council, had previously heard appeals in equity, common law, admiralty, and lunacy matters. Moreover, to this division was to be transferred the jurisdiction of the ju <^. tannaries Court (see p. 85), and also that of the Judicial . . ,''' < 'oinniil t'.'c of Privy Council in ecclesiastical matters, upon the trial of which matters some of the archbishops and bishops were to attend as assessors to the judges. It was further provided, that the remaining jurisdiction of the Judicial Committee might, if it seemed expedient, be trans- ferred to the Court of Appeal. There was to be no further appeal from this new Court of Appeal, either to the House of Lords, Privy Council, or any other tribunal. 6 The Lord Chancellor and Master of the Rolls, and the three chiefs of the old common law courts, were to retain their former titles and precedence; but the other judges were to be called judges of her Majesty's High Court of Justice, or Lords Justices of Appeal, according as they were appointed to the first or second division of the Supreme Court. The main object of thus consolidating the courts was to produce a complete fusion between the systems of law and equity as previously administered in the Common Law and Chancery Courts respectively, and provisions to effect this effusion were inserted in the Act; but the mode in which it was to be carried out, as well as other details of the practice and procedure in the new court, were left to be laid down by rules of court, to be drawn up by the Lord Chancellor, Lord Chief Justice, and other judges. The Act 6 These provisions were, however, modified by a Bill introduced in the session of 1875. 232 History of the English Institutions also empowered the queen, by order in council, to establish district registries throughout the country in connection with the Supreme Court, and to confer on other inferior courts a similar jurisdiction in equity and admiralty matters to that possessed by the county courts. It likewise directed the appointment of official referees, and enacted that the court might, under certain circumstances, refer cases to them or to special referees, and might act upon their report, instead of deciding the question itself. Another alteration consisted in the abolition of the old legal divi- sion of the year into terms, it being left to the rules of court to determine the times and duration of the vacations (36 & 37 Viet. c. 66). CHAPTER IX. THE EXECUTIVE. 1. Power of the King. The executive power of the Crown has been always more absolute and less subject to control than its legislative and judicial powers. It has never, like the judicial functions of the sovereign, been delegated to distinct bodies, with whose action he has no right to interfere. The position occupied by subjects with respect to it has ever been that of counsellors and agents ; and though the sovereign cannot now put forth executive power except with their advice, and through their instrumentality, yet they are absolutely incapable of exercising it independently of the person who, whether as king or regent, is for the time being invested with royal authority. It is the Crown which appoints, and may at any time dismiss, the officers to whom it entrusts the administration of state affairs and the command of the national forces. Through them the sovereign enforces The Executive 233 the laws, collects and dispenses the public revenues, regu- lates the movements of the army and navy, and communi- cates with foreign nations, entering into treaties and making war and peace. Of course, the extent to which in these various matters the king directs, or is himself directed by the officers who wield his authority, must depend upon his and their personal character and relative abilities, and will consequently vary from time to time, and from reign to reign. In either case, however, his individual capacities exercise a most important effect upon the government of the state. The magnitude of that effect in pre-Norman times may be estimated by the fact, that an Alfred could save the nation, while an ^Ethebed could reduce it to the verge of ruin. Control of the Witan. "We are told by Tacitus that the old Teutonic tribes entrusted the administration of affairs to their nobles (see p. 2), who, in a small and compact community, were, of course, able constantly to meet together and carry it on in concert. Its transfer into the hands of the king among the tribes who settled in Britain is probably due partly to the increase of power which a victorious military leader would inevitably acquire on locating his tribe in a new territory after a successful invasion, and partly to the fact that, when several tribes, settled over an extensive tract of country, became united into one kingdom, the constant meeting of the nobility for the transaction of business would be impossible. They might be convened from time to time for legislation and judicature, which could be carried on at intervals, but the daily administration of affairs must be left to the king and the few permanent counsellors in constant attendance upon him. Yet we find that during several of the reigns before the Conquest, the Witan possessed a considerable share of administrative and executive power. 234 History of 'the English Institutions They were consulted as to the appointment of bishops, ealdonnen, and other public officers, as to the making of war or peace, and the management and appropriation of the folc-land, or public land. The stronger kings, how- ever, kept these matters under the control of themselves and their state officials. This was particularly the case in the latter part of the pre-Norman period. It was then also that, by the distribution of the kingdom among a small number of eorls or earls appointed by the sove- reign, a heavy blow was given to local self-government, and a corresponding increase of the central authority effected. 2. Power of the King. After the Conquest the executive power of the Crown remained theoretically the same. Everything was still nominally transacted by the king. But practically he was much controlled by his council and officers of state. That this control was a reality, and was recognised as such, is evident from the passage in Bracton, who lived in Hen. 3's reign, in which he says that the king, besides being subject to God, is also subject to the law by which he was made king, and to his curia, or court, that is, to the counts and barons, who, if the king is acting in an unbridled and lawless manner, ought to put a curb upon him. 1 It followed, in fact, from the ancient and fundamental maxim of our constitution, " The king can do no wrong," that when- ever an injury was committed in the name of the Crown, the blame of it must rest either with the counsellors who 1 " Hex autem habet superiorem, Deum. Item legem, per quam factus est rex. Item Curiam suam, videlicet comites, barones, quia comites dicuntur quasi socii Regis, et qui habet socium, habet magis- trum ; et ideo, si rex fuerit sine freno, i. e., sine lege, debent ei frcenum ponere, nisi ipsimet fuerint cum rege sine fraeno." Bracton lib. 2, c. 16, 3. The Executive 235 acquiesced in it, or with the ministers (i.e., servants) or agents who carried it into execution. Officers of State. The curia which Bracton describes was, in fact, the Magnum Concilium, which met, as we have seen, at the oftenest, only three times a year. When it was not convened, the king had recourse, in the exercise of his executive as well as of his judicial power, to the aid of his Concilium Ordinarium. The different branches of administration were entrusted to the different officers composing this council, who were at first almost all either lay or spiritual peers. Thus the constable and marshal attended to military matters, the chamberlain to the king's private financial concerns, and the chancellor to questions respecting the grants of the Crown lands. But the greatest of all the state officers was the_chief jus- ticiary^ who, besides his judicial and financial functions, was invested with a control over the other officials and over the general administration of affairs, much the same as that now exercised by the prime minister. In the early Norman reigns the chief justiciary also acted as regent, and represented the king during his frequent absences abroad. In this capacity the chancellor was sometimes united with him, as in Ric. 1's reign, in the case of William Longchamp, who was deposed from the office by a convention of the barons. But, in the reign of Hen. 3, instead of the justiciary assuming the regency by virtue of his office, custodes regni were specially appointed. The power of the justiciary, as organised and augmented by Roger bishop of Salisbury, who held the post under Henry I., at length became so great, that in Edw. 1's reign it was deemed expedient to abolish the office (see p. 203). Next in importance to the chief justiciary stood the chancellor, from the fact of his being the keeper of the great seal, the impress of which was at 236 History of the English Institutions that time required, not only for the grants of Crown lands, but also for all the king's warrants and orders in affairs of state. Advice of the Great Council. But although the Ordinary Council had acquired the principal share in the administration of affairs, the Great Council was not un- frequently consulted when matters of more than ordinary importance were under consideration. Thus Henry II. consulted his Great Council on the subject of the corona- tion of his eldest son and the marriage of his daughter, on the circuits of the judges, on the removal of corrupt sheriffs and bailiffs and of wardens of castles, on the resumption of alienated Crown lands, and on the quarrel between Castile and Navarre. Magna Carta. Some of the provisions of Magna Carta imposed a control over the executive powers of the king. John was made to promise : "We will not make justiciaries, constables, sheriffs, or bailiffs, except of such men as know the law of the realm, and are willing to observe it properly " (c. 45.) It was also stipulated that immediately after the restora- tion of peace he should remove all foreign soldiers from the kingdom. Moreover, the relations between the English and the Welsh were made the subject of distinct declarations, and John was obliged to give an assurance that he would enter into a treaty with the king of Scotland. 3. Regencies. After the loss of the duchy of Normandy, the absences of our kings from the country became less frequent, but circumstances from time to time still rendered it necessary to appoint a regency. This was done in the form practised by Henry III., that of custodes regni. The Black Prince and his son Richard The Executive 237 both held this office while still minors. Eegencies occurred upon the accessions of Eichard IL and Henry VI. The proceedings in the last case were more regular than on previous occasions the Duke of Bedford, or, in his absence, the Duke of Gloucester, being appointed by Parliament protector and defender of the kingdom and English Church, and the king's chief counsellor. The Duke of York was similarly appointed in 1454, and again in the following year, when Henry VI. was deranged in mind. It seems to have been at this time recognised : (1.) That the king does not possess any constitutional prerogative of appointing a regent during the minority of his succes- sor; and, (2.) That neither the heir presumptive nor any other person is entitled, as of course, to exercise the royal prerogative during the king's infancy or infirmity, but that the sole right of determining such persons, and prescrib- ing the limits of their authority, rests with Parliament. Control of Parliament. Besides this occasional control by Parliament over the executive, it was, like the Great Council, whose place it had taken, from time to time consulted on matters of administration, such as the question of peace or war. Instances of this occur in the reigns of Edw. 3 and Hen. 7. Power of Council. On the other hand, ^he power of the Ordinary Council was continually on the increase. In Edw. 2's reign petitions were presented by Par- liament to the king and his council, and in 1341 a complaint was made by Parliament of its growing influ- ence. A desire to get rid of the control which it was able to exercise upon the king's proceedings, from the fact of one of its members having the custody of the great seal, led Edward I. and his successors to adopt the practice of issuing writs under a smaller or privy seal, and even at times to retain the great seal in their own hands. 238 History of the English Institutions But they were unable to persist long in the latter course, and the freedom, which they at first gained by the use of a privy seal for certain purposes, was soon lost, for this seal also passed into the custody of a member of the council, called the Lord Privy Seal This office eventu- ally attained great importance, since it became gradually established that the chancellor could not affix the great seal to any document, except under the authority of the privy seal, and therefore with the cognizance of the officer who had the custody of it. To this authority that of the royal signet was at one time added, in order to insure that the proceeding took place with the king's knowledge and under his sanction. For the sovereign was no longer an habitual attendant at the deliberations of the council He had originally been always present at its meetings, and all its determinations had been in fact his own, arrived at with the assistance of his councillors. But from the close of the fourteenth century the ordinary debates of the council, when there was no special business of importance to be transacted, were carried on in bis uce, and his consent to their decisions was given by means of the royal seals. The power of the council was, of course, considerably enhanced by this change; and under the Lancastrian kings it was further expressly ex- tended by regulations passed in Parliament, and by a royal ordinance, which required that the consent of the council should be given to all grants made by royal writ or letter. Besides its judicial functions noticed in the preceding chapter, it had the direction of the finances, of trad. both domestic and foreign, of the fortifications of the realm, of the preservation of the peace, and of the relations between the Church and the State, and generally regulated the administration of public affairs. Privy Council. From the reign of Hen. 6 the The Executive 239 right of taking part in the deliberations of the Council, and of exercising its powers, was withdrawn from the \vhole body of persons composing the Ordinary Council, and became confined to the small number amongst them who attended regularly, and who acquired the name of the Privy Council x and absolute secrecy was enjoined upon these as to what passed at their council board. As late as Hen. 8's reign, we find ordinary councillors as distinguished from privy councillors, and though the distinction of name was subsequently abandoned, and all were in later times termed privy councillors, the real dif- ference was, as we shall see, revived after the Restora- tion in another form ; and at the present day the fact of being appointed a privy councillor confers no right on a person to take part in the proceedings of the council, or any of its committees, without a summons to do so. Growing Power of Commoners. Another impor- tant alteration in the balance of the executive power was at the same time in progress, being nothing less than the admission of commoners to a share and eventually a preponderating share in the exercise of it. Their only avenue to power had originally been through holy orders, by elevation to an ecclesiastical peerage. But the gradual introduction of lay commoners into the king's council has been already noticed (pp. 177, 8); and, though they naturally at first held a subordinate position in it, their power speedily increased, either through their own Hiperior abilities, or through a preference on the part uf "the king to entrust authority to ajnan of humble extrac- jtion without influence or property, who would be entirely dependent on his favour, and towards whom he could have no cause for jealousy, rather, than to a powerful and independent noble. Moreover t.lg_drmjmitinp in th numbers and power of foe nobility. -during the wars of * 240 History of the English Institutions the Eoses no doubt contributed to this result. It is to be noticed that this growth of the commoners' influence in the executive was marked, not by their promotion to higher offices, but by the elevation in point of importance and authority of the offices which they originally filled. Thus the secretary (for there was at first only one officer of that name) was in old times merely the king's clerk, possessing no political influence unless he chanced to be one of the council. After a time two were appointed, and the dignity of the office increased. Beckington, secretary under Henry VI., was a diplomatist of considerable repu- tation. In the folio wing reign many bills and warrants were made to pass through the secretary's hands. Dr Fox, one of Henry VII. 's secretaries, became Bishop of Exeter, and to his successor in the secretariate was entrusted the duty of signing a treaty with Portugal. In Hen. 8's reign the office was held by Cromwell, before he was advanced to be Lord Privy Seal ; and the chief secretary became ex officio a member of the Privy Council, and ranked as a baron of the realm, taking pre- cedence, if he was himself a baron or bishop, of the other peers of the same rank. 4. Ecclesiastical Supremacy. The kings of Eng- land, with few exceptions, had, in every age, more or less successfully asserted the independence of this country and its Church as against the see of Rome. But the final acquisition by them of that control over English ecclesi- astical affairs, for which the Papal Court had long struggled, took place at the Reformation. The assumption of ecclesiastical supremacy by Henry VIII. involved the recognition of the sovereign as head of the Church, not only in matters of legislation and judicature (see pp. 191, 214), but also in reference to the appointment of Church The Executive 241 officers, and the exercise of administrative functions by them. The nomination of the bishops and deans of the English Church has, since 1533, except during Mary's reign, rested exclusively with the sovereign ; but, when once appointed, the sacred character of their office preserves them from being removed, like the holders of state offices, at the will of the sovereign. The ecclesiastical supremacy of the Crown was at one time delegated by Henry VIII. to Cromwell, whom he appointed his vicegerent to ad- minister all matters connected with the church. The supre- macy was entirely renounced by Mary, but was resumed by Elizabeth upon her accession. The Crown does not in general interfere in the administration of Church affairs ; but the sovereign in council has the power, which is exercised on extraordinary occasions, of prescribing the observance of days of national fasting and thanksgiving, the~iise of special forms of prayer, and other matters of ecclesiastical detail; and the whole of the episcopal, cathedral, and other landed property of the Church is now vested in a body of ecclesiastical commissioners constituted in 1836, and consisting of the archbishops and bishops, and certain ministers of state and judges (provided they belong to the Church of England), as ex ojficio members, and other persons from time to time nominated by the Crown. These commissioners dispense the revenues of the property entrusted to them under the sanction and control of the queen in council. Power of the Crown in Civil Matters. In state^ affairs the Tudor and Stuart monarchs recovered and retained in their own hands much of that administrative and executive authority which the Council had wrested from their predecessors. The sovereign resumed his place at the meetings of the council, and James I. even assisted at the exercise of its judicial functions in its Court of 242 History of the English Institutions Star Chamber. The name of the council was still associated with, that of the king in the government of the State ; but, instead of this being carried on almost entirely by that body as a whole, the various branches of it were for the most part directed by the king himself through his ministers the members of the council holding offices of state each of whom thenceforth was occupied with his own department, and interfered comparatively little with those of his colleagues. In Edw. 6'a time the council was divided into five committees, to which separate functions were assigned ; and Elizabeth carried on the government mainly through her secretaries, or Secretaries of State, as they were now called in reference to the increased importance of their office. Control of Parliament. The struggle between the first two Stuarts and the Parliament, which was for a long time mainly confined to the regions of legislation, judicature, and taxation, was ultimately extended to the domain of the executive, and the determination of Par- liament to obtain the control of the militia was the imm- fl 5 diate cause of the civil war. Previously to this, however, the power of the Crown to grant monopolies had been restrained (see p. 33), its right to billet soldiers on the people, and to inflict arbitrary imprisonment, had been repudiated, and Parliament had begun to exercise an indirect but effectual control over the general government of the country, by refusing or stinting the supplies so long as measures which it disapproved were persisted in. After the Restoration, the right of the Crown to have the command of the militia, and of the other naval and milftary forces, and the fortresses of the kingdom, was reaffirmed (see p. 37), and the executive power of the sovereign was in other respects reinstated. Parliament remained, as it had been before the commencement of the The Executive 243 contest, destitute of any direct control over a single department of the state. The two Houses might pass resolutions and present addresses to the Crown, expressive of their opinion upon matters of administration, and the risk of impeachment .was incurred by an officer of the Crown who acted in those matters in such a manner as to call for the condemnation of Parliament ; but this body continued unable to give an order or direction to the very lowest of the executive officers of the kingdom in reference to the discharge of his duties. ;- Cabinet Council. A considerable change in the method of our administration does, however, date from soon after the Eestoration ; but it was initiated by the king himself. The abolition of the Court of Star Chamber had destroyed the overweening judicial power of the Privy Council, and Charles II., while he increased its members, at the same time virtually deprived it of its political power. Notwithstanding the separation of the affairs of state into different departments as already noticed, many matters had still been brought before the whole body; but Charles, from his personal dislike of long debates, and from the feeling that the deliberations of a large body were not conducive to secrecy or despatch, abstained more and more from calling it together, and acted with the advice of a smaller number of counsellors instead. The previous existence of committees of the council for various branches of administration (see p. 1 78) constituted a precedent for the formation of this select body, though not for the transfer to it of all the functions of the council. It received the title of Cabinet Council, a designation not entirely unknown in Cha. 1's reign ; and though, when composed of the five unprincipled politicians, 2 from the initials of whose names it was 2 Clifford, Ashley, Buckingham, Arlington, and Laudenlale. 244 History of tJie English Institutions called the Cabal, 3 it fell into disrepute, and an attempt was ma ie to reinstate the whole Privy Council in its former position, yet this attempt proved a failure, and the Cabinet has ever since directed the government of the country. Political Parties. While the instrument for the future administration of affairs was being thus fashioned, the two political parties, through the conflict of which Parliament was destined to exercise a control over the executive, were also gradually assuming shape. The germs of party first appeared in the reign of Eliz., when the Puritan members of the Lower House Tiegan to array themselves in opposition to the exercise of the queen's prerogatives in ecclesiastical and civil matters. In the reigns of Ja. 1 and Cha. 1 this opposition assumed a more definite shape the members who took part in it being called the country jarty, as opposed to the court party. The former party, after triumphing during the Commonwealth, was almost annihilated at the Restoration ; but it revived again in the contest upon the Exclusion Bill in 1 67 9^8Q (see p. 133), a contest which gave_rise to the abiding names of Whig and Tory. The supporters of the Duke of York were called Torjes, after a gang of Irish Roman Catholic freebooters, while the country party obtained the soubriquet of Whigs, either from a Scotch word denoting sour whey, or from the name applie'd to the Scottish Covenanters who made a raid upon Edinburgh in 1648. (jLnu - S 5. The Ministry. The two reigns which immedi- ately followed the Revolution witnessed the amalgamation of the members of the Cabinet and the subordinate officers who wielded the executive power into a ministry, 3 The word cabal, however, with the meaning of " club " or " coalition," had already existed in the English language. The Executive 245 united among themselves, and responsible to Parliament, the formation of such a ministry was the 1 naltlfal, lliuugh not the immediate result of the division of the country and Parliament into the two political parties of Whigs and Tories. Up to the year 1693, William III., from a desire to conciliate both these parties, distributed the princi- pal offices of state with tolerable equality between them. Hence there was, of course, npunit^ of opinion or of purpose, among the holders of these offices. Each dis- charged his own duties independently of and often in opposition to his colleagues. The king and Parliament were alike distracted by the cross-counsels and cross- action of those, who constitutionally represented the Crown, and were responsible for its proceedings. The only remedy for this state of things evidently lay in committing all the offices of government to men of the same general .politics, who would act harmoniously to- gether in all important matters. Accordingly, between 1693^and 1696, the offices held by Tories were almost all transferred t.n Wfrigra. At the same time the Whig leaders were united together in a manner so unusual at that period, as to acquire for them the nickname of " The Junto," and the party followed their guidance in a manner which was then equally unprecedented. More- over the election of 1695 put this party in a decided majority in the House of Commons. Again, _the death of Mary in the same year necessitated_the appointment, during William's subsequent foreign expeditions, of a Council of IJeguncy, under the name of Lords Justices, and, with the exception of the Archbishop of Canterbury, composed entirely of officers of state, who were thus directly led to act in concert. These various accidental rather than premeditated causes combined to bring about during the years 1695-1698 something of the modern 246 History of the English Institutions ministerial form of government. But the system was as yet by no means thoroughly settled. Thus the ministry continued in office notwithstanding that the election of 1698 destroyed their majority in the Lower House, and that Montague, who was their chief representative in that House, and, according to modern ideas, would have been styled and considered leader of the House, thenceforth completely lost control over it. The old state of things consequently returned, and lasted till 1 705, when a Whig Parliament was again elected. Moreover William III., who was the ablest statesman of his day, was his own minister for foreign affairs, and in person con- ducted negotiations with other nations as well as com- manded armies in the field. And clauses were even inserted in the Act of Settlement of 1700 (12 & 13 Will. 3, c. 2), providing that, after the accession of the house of Brunswick, all matters relating to the Govern- ment, which were cognisable in the Privy Council, should J?g transacted there, and that no person holding an office or place of profit under the king, or receiving a pension from the Crown, should sit in the House of Commons. These clauses were calculated to destroy the institution of the Cabinet and ministry, and completely to sever the connec- tion between Parliament and the executive; but they were repealed in Anne's reign before they came liito operation. After the death of William there followed a succession of three sovereigns, who, while endowed with only moderate capacities themselves the last two being, more- over, imperfectly acquainted with the English constitu- tion, manners, and language were at the same time served by ministers of remarkable ability. During their reigns the ministerial system was gradually developed, and the real government of the country became finally entrusted to the body of state officials with whom it now The Executive 247 rests, but who, as a body, have no legally recognised position in our institutions. Under the system thus established, ministers are equally responsible to the Crown and To the country.* If their policy in either domestic or foreign affairs is persistently_opposed by the king, they must abandon it or throw up their seals of office. They are equally bound to resign if their action in any important particular is condemned by the voice of the country as uttered in Parliament. It is unnecessary to specify any of the numerous cases in which a change of ministry has occurred from the latter cause. As an instance of the retirement of a minister owing to a want of harmony with the sovereign, may be mentioned that ot Mr Pitt in 1801, after holding office for seventeen years, in consequence of the irreconcileable opposition of George III. to the admission of Eoman Catholics to Parliament, 4 The English ministry is thus described by Macaulay (Hist, of Engl. ch. xx.) : " The ministry is, in fact, a committee of leading members of the two Houses. It is nominated by the Crown, but it consists exclusively of statesmen whose opinions on the pressing questions of the time agree, in the main, with the opinions of the majority of the House of Commons. Among the members of this committee are distributed the great departments of the administration. Each minister conducts the ordinary business of his own office without reference to his colleagues. But the most important business of every office, and especially such business as is likely to be the subject of discussion in Parliament, is brought under the consideration of the whole ministry. In Parliament the ministers are bound to act as one man on all questions relating to the executive government. If one of them dissents from the rest on a question too important to admit of compromise, it is his duty to retire. While the ministers retain the confidence of the Parliamentary majority, that majority supports them against opposition, and rejects every motion which reflects on them, or is likely to embarrass them. If they forfeit that confidence, if the Parliamentary majority is dissatisfied with the way in which patronage is distributed, with the way in which the prerogative of mercy is used, with the conduct of foreign affairs, with the conduct of a war, the remedy is simple They have merely to declare that they have ceased to trust the ministry, and to ask for a ministry which they can trust." 248 History of the English Institutions and removal from them, of other disabilities, which he was desirous to effect. Theoretically this double responsi- bility of the ministry might lead to a dead lock in Government, if king and people stubbornly adhered to opposite views upon an important question, as the exist- ence of a ministry would then become impossible ; but this flaw in the system a flaw which must at some point or other exist in all forms of limited monarchy has practically never caused serious inconvenience ; for upon all such questions, when the desire of the people has been unequivocally and persistently expressed, the sove- reign has ultimately given way, content, perhaps, with exercising, unknown to the public, a predominant in- fluence over the counsels of the Cabinet on matters about which the country at large has felt ne interest, or has not pronounced a distinct opinion. Meanwhile this state of things has materially increased the safety both of the Crown and of its ministers. It had always been a maxim of our constitution that " the king can do no wrong," and that his advisers are answerable for illegal or improper acts on the part of the Crown. Yet before the institution of ministerial responsibility, not only was fttrafford be- headed, _Clarendpn banished, and Danby and other ministers disgraced, imprisoned, and attainted, but even Clmrles I. lost his head and James II. his throne. Now, however, when the conduct of the executive is in conflict with the will of the nation, a change of dynasty is unnecessary, for harmony is restored by a change of ministry instead ; and since ministers are supported while in office by the majority of the representatives of the nation, and cease to hold office directly they lose that confidence, their policy is in some sort the policy of the nation at large, which the latter can scarcely repudiate to such an extent as to visit with punishment those who The Executive 249 have carried it out. Hence, since the establishment of the ministerial system, there has been only one instance of the impeachment of a minister, namely, that of Lord Melville in__1805. and even this was for offences not "connected with his political duties as a minister. Control of Parliament. Besides the indirect con- trol which Parliament has obtained over the executive by means of the ministerial system, there are other not less effectual means of securing that government shall be carried on in accordance with the wishes of the country. Foremost among these is the absolute depen- dence of the executive from year to year on he vote of Parliament for obtaining the supplies of money neces- sary for conducting the administration of affairs. This dependence became more absolute after the Revolution of 1688 ; in proportion as the expenses of government grew more heavy, (see ch. x. p. 282), while the Crown was in a less advantageous position to meet them from its own resources, owing to the extent to which William III. impoverished it by granting away the Crown lands to favoured subjects. Another check on the executive is the right acquired by Parliament, as will be noticed in the next chapter (p. 278), of directing the objects to which the supplies voted by it shall be applied. Again, it was laid down by the Bill of Eights, that " the raising or keeping a standing army within the kingdome in time of peace, unlesse it be with consent of Parlyament, is against law ; " and the power of the Crown to maintain a stand- ing army at home and abroad depends on an Act called the Mutiny Act, which has been passed annually since the Revolution, and which enables the Crown to main- tain martial law and discipline in its land forces during the ensuing year. And though Parliament remained unable to dictate as to the administration of affairs pro- 250 History of the English Institutions spectively, it asserted the right of instituting retrospec- tive inquiries into that administration. Previously to the Revolution the only mode of conducting such inquiries had been by the impeachment of the minister, but it was now done by committees appointed by the tAvo Houses for the purpose a proceeding which, when recognised as lawful, necessarily carried with it a right to examine witnesses, records, and papers. Two pro- posals were made soon after the Revolution with a view to a more direct parliamentary control over the executive : the one in 1692, for a committee of both Houses to con- sider the state of the nation, and advise the king respect- ing it ; and the other, for the nomination by Parliament of a Council of Trade. But neither of them was ever carried into effect. Increased Power of Executive. The various means which Parliament, and through it the nation, thus possessed of regulating the course of government, enabled large additions to be made to the power of the executive, without any danger to the liberties of the country. The first two Georges, being themselves foreigners, and having their interest centered in the affairs of Hanover, exercised little personal influence in English politics ; and during their reigns the Whig party, which was then in the ascendancy, fostered the consolidation and growth ot the authority of the Crown, wielded, as that authority then was, by ministers who were supplied from its own ranks, and who, not trusting for support solely to their political principles and the merits of their measures, largely resorted to bribes from the public money for the purpose of retaining for themselves the approval of the House of Commons. Greatly increased powers were given to the executive in the matter of taxation, especially in the department of excise. The revenue officers were The Executive 251 entrusted with a large and arbitrary authority as to collecting the duties and searching for evasions of them, and difficulties were thrown in the way of obtaining redress in case of an illegal stretch of their authority ; while, on the other hand, persons accused by them of breaches of the revenue laws were placed under a dis- advantage, by the fact that such accusations were made cognisable by commissioners or magistrates, instead of by a jury, and that less accurate proof of their guilt was required than in ordinary criminal or penal proceedings. Another important measure for strengthening the execu- tive was the Riot Act (1 Geo. 1, st. 2, c. 5) which imposed the penalty of death, without benefit of clergy, on any persons who, to the number of twelve or more, continued together in an unlawful and tumultuous manner for one hour after being required to disperse by pro- clamation made in the king's name by a sheriff, mayor, justice, or other officer. Moreover, in 1718, a power to inflict death on members of the regular forces for mutiny or desertion was inserted in the Mutiny Act r and has been since annually renewed. Another clause repeated every year in that Act has effected the suspension of what was considered in Cha. l.'s time as one of the fundamental liberties of Englishmen, their exemption from having soldiers billeted upon them against their will, and authorises the billeting of soldiers on innkeepers and victuallers. Personal influence of the Sovereign. The per- sonal influence of the sovereign over the administration of affairs was considerably weakened at the Eevolution, and, as has been already remarked, was little exercised by the first two Georges. At the commencement of Geo. l.'s reign, owing to that king's ignorance of the English language, the practice was begun, which has 252 History of tJie English Institutions prevailed ever since, of the Cabinet Councils being held, like the meetings of the Privy Council in old time (see p. 238), without the presence of the king. But though weakened, the sovereign's influence was yet far from annihilated. Even in Geo. 2's reign, it was manifested fl, in the continued prosecution of the war of 1743 against the French by two rival ministries,, and by the observance t, of a general line of policy for the benefit of Hanover ; and George III., from the very outset of his reign, endeavoured to reassert it to the full extent which our constitution would at that time permit. He began by calling into his confidence an inner knot of counsellors with Lord Bute at their head, who held their position indepen- dently of the approval of Parliament or the country, and supplanted the Cabinej;_in its relations with the Crown. Perhaps nothing has more strongly shown the practical excellence of our system of ministerial government, than the fact that it was found impossible long to maintain this irregular state of things. Its immediate result was the overthrow of the existing minis- try, and the substitution of the king's real advisers in their place, thus restoring the constitutional order of things. But inasmuch as Lord Bute's ministry was not acceptable to the country, he found the difficulties of his position so great that he was obliged to resign office within a twelvemonth ; and though he attempted to re- sume his unconstitutional position of secret adviser, his entire dismissal from court was in a short time forced upon the king by the very minister who had been ap- 1 pointed at his instance, and was expected to submit to his control. The inability of the king at this time perma- nently to commit the government to men of his own mind who lacked the support of the country, is shown by the fact that he was reduced, in 1765, to the necessity of The Executive 253 accepting as premier the Marquis of Rockingham, whom he had a short time before removed from the lord-lieute- nancy of a county, and, as a secretary of state and leader of the ministry in the Lower House, General Conway, whom he had once deprived of all civil and military ap- pointments. But George III. attempted to carry out his own personal views of government in another manner. Being unable to dissuade his ministry from proposing the repeal of the Stamp Act, which they thought necessary for the conciliation of the colonies, and not venturing to dismiss them from his counsels, he brought his influence to bear against them by causing his private opinions on the measure to be made known to members of the House ot Commons, who were holding office under the Crown, and whom he could trust. Hence was presented the singular spectacle of office-holders under the Crown voting against its own ministers. This proceeding led to a resolution of the House of Commons, affirming that " to report any opinion, or pretended opinion, of his Majesty, upon any bill or other proceeding depending in either House of Parlia- ment, with a view to influence the votes of members, is a high crime and misdemeanour, derogatory to the honour of the Crown, a breach of the fundamental privileges of Parlia- ment, and subversive of the constitution." George III., in fact, keenly watched the debates in Parliament, com- mented on the silence. of those whom he had expected to speak, and marked his displeasure at the conduct of mem- bers in a debate by his behaviour to them at his drawing- rooms and levies, and in the case of one or two officers, even by passing them over in the order of promotion in the army. George IIL's personal influence in the man- agement of public affairs attained its climax during Lord "pjnrtb's administration (1770-1782). That minister suf- fered himself to be directed, both in his general policy and 254 History of the English Institutions in the details of his administration, by his royal master. During the last five years of his tenure of office he was personally averse to the continuance of the war in Ame- \\\ rica, but surrendered his own judgment to that oFthe King. The king prescribed for his minister the mode in * ^ which the debates should be managed and measures car- ried in Parliament. He appointed fro parliamentary, iudi- ' cial, and military pfficgs^and granted honours and pgn- sions at hisown discretion, and interfered in the affairs , or tue army to such, an extent as even, on one occasion, (. y himself TcTorder the marching of troops. In short, there was at this time too much truth in the complaints ot the opposition, that " his Majesty was his own unadvised minister." He on more than one occasion threatened to abdicate, or appeal to the sword, rather than yield his convictions, or accept a minister whom he disliked. With respect to his right of veto, he wrote, in_1774, as follows: " I hope the Crown will always be able, in either House of Parliament, to throw out a Bill ; but I shall never con- sent to use any expression which tends to establish that at no time the right of the Crown to dissent is to be used." But the will of Parliament was destined at length to prevail. In 1780 the House of Commons passed resolu- tions, affirming that the influence of the Crown had in- creased, was increasing, and ought.to be diminished, and that the House of Commons had a right to correct abuses in the civil list expenditure and every other branch of the public revenue. Two years later Lord North was forced to resign office, and the American war was brought to a close in spite of the wishes of the king ; and the civil list was dealt with in a manner which will be noticed in ch. x. (p. 283). The accession to office of Mr Pitt, in December 1783, The Executive 255 was the occasion of another struggle between George III. and the House of Commons. The latter at once, and be- fore any trial had been made of the policy of the new ministers, endeavoured, by votes of want of confidence / and by withholding the supplies, to make their position 1** untenable in the existing Parliament, and at the same time to prevent an appeal to the country by a dissolution. The opposition, which commenced the struggle with an overwhelming majority, was vanquished by the courage, abilities, and perseverance of Mr Pitt. Within four months after the contest had commenced with a majority of nearly two to one against ministers, that majority dwindled down to one. The defeat of the opposition was then complete ; the supplies were voted, and Parliament was dissolved. Mr Fox's India Bill was considered by the country as an audacious attempt to interfere with the pre- rogatives of the Crown ; and its verdict gave Mr Pitt an overwhelming majority, which he retained for seventeen years, and, at the end of that time, went out of office on a misunderstanding, not with the House of Commons, but with the king (see p. 247). From the date of Mr Pitt's triumph, the Crown, Jor nearly fifty years, continued to prevail over every other power in the state. The king, however, was no longer his own minister ; for though he continued his application to public affairs, and every act and appointment was submitted to him for his approval, Mr Pitt was not the man to subject his will to fchat of another. And during this period we find the breaking out of hostilities, and the opening of negotiations for peace, communicated by the Crown to Parliament, and frequent motions made in both Houses in favour of over- tures for peace, which were successfully rejected by minis- ters, but were not objected to on constitutional grounds. We find also_clauses inserted in the Militia Acts, provid- 256 History of the English Institutions ing that, whenever the king calls out the militia, Parlia- ment shall, if not sitting, be promptly assembled. Regencies. No definite arrangement exists in our constitution as to the exercise of the executive power when the king is a minor, or afflicted with mental incapa- city; and the prospect or actual occurrence of such an emergency has, on each occasion, been specially provided for at the time. Thus, after the death of Frederick Prince of Wales, the Regency Act of 1751 directed that, in the event of the death of George II. during the minority of the next heir to the throne, the widowed princess should be regent, with a council of regency, in part named in the Act, and in part left for nomination by the king, by an in- strument not to be opened till after his death. Again, the Regency Act of 1765 empowered George III. to nominate, by instruments to be kept sealed during his life, one of the royal family to be the guardian of his successor while under eighteen, and to exercise royal power as regent during the same period. It also appointed a council of regency, and authorised the king to nominate a substitute in the place of any of its members who might predecease him, or be appointed the regent. Neither of these Acts, in the event, came into operation; but in 1788 it became again necessary to consider the question of a regency, owing to the king's mental derangement. On this occa- sion Parliament was obliged to assume some of the royal functions. The king had become ill during the summer recess, and it was necessary to dispense with the royal summons for the meeting of Parliament for dispatch of business on the day to which it had been prorogued, and also with the royal license to the Commons to elect a new speaker in the place of the speaker who had died during the crisis, and with the king's approval of their choice. Moreover, as Parliament was not yet formally opened, The Executive 257 the two Houses voted that the great seal should be affixed to a commission for opening it a proceeding which, properly speaking, required the direction and signature of the king. It had been intended to get over by a similar formality the impossibility of duly ob- taining the royal assent to a bill for the appointment of a regency ; but owing to the disputes between ministers on the one hand and the Prince of Wales (the intended regent) and the opposition on the other, as to the limits to be imposed on the regent's power, the Bill was still under discussion when the king recovered. The delega- tion of the royal authority was, however, only postponed for a time. In 1810 the king became permanently de- ranged in mind, and, as on the previous occasion, a com- mission under the great seal for opening Parliament was issued by authority of the two Houses. By the same authority letters-patent under the great seal were issued for giving the royal assent to a Regency Bill, which vested the royal authority in the Prince of Wales, subject tc certain restrictions as to his power of granting peerages, offices, and pensions. Before this Bill was passed, the exigencies of the public service required the two houses to assume another executive function, and to order the officers of the Exchequer to pay out certain sums which had been appropriated for the army and navy, but for the issue of which a warrant by authority of the king under the privy seal was legally requisite. Another Regency Act, to provide for the event of a minority, was passed soon after the accession of William IV., and a third in Queen Victoria's reign, after her Majesty's marriage. Before that event, the fact that the king of Hanover was heir-presumptive to the throne led to an Act providing for the administration of the government by Lords Justices until the arrival of the queen's successor, 258 History of the English Institutions in case he should be out of the realm at the time of her decease. All these Acts happily proved unnecessary. Substitution for Royal Sign-Manual. In the last year of Geo. 4's reign there occurred a delegation of royal power of a more restricted and less important kind than those which had been necessary in the preced- ing reign. Owing to the difficulty and pain which the king experienced in affixing his signature to documents for which it was required, an Act was passed em- powering him, during the current session, to appoint one or more persons to affix in his presence, and under his oral direction, the royal signature by means of a stamp. This proceeding had been occasionally adopted by former kings of their own accord, as, for instance, by Henry VIII. and the two succeeding sovereigns; and William III. on his deathbed affixed a stamp to a commission for signifying the royal assent to certain Bills. But a Bill for the attainder of the Duke of Norfolk, having received the royal assent under a commission to which Henry VIII.'s signature was given by a stamp affixed, not by him- self, but by a clerk, was on that account declared invalid by Parliament. And when the occasion for using a stamp arose in Geo. 4's reign, it was considered that such a course would be illegal unless expressly sanctioned by the Legislature. 6. Personal Influence of the Sovereign. The sovereigns who have reigned since George III. have not, as a rule, openly taken the same prominent part in the executive administration which he did. But apart from the general personal influence, which they have exercised in their conferences with their ministers on the various affairs of state, and the extent of which can, of course, be known only to the ministers themselves, instances have not The Executive 259 been wanting in which their personal attitude has avowedly affected the government of the country. In 1834, William IV., of his own motion, dismissed the Whig ministry of Lord Melbourne, which at that time enjoyed the con- fidence of the House of Commons, and took Sir Eobert Peel into his counsels. The king was, however, only able for a few months to maintain his own inclinations in opposition to the will of the nation ; for Sir Eobert Peel, after in vain appealing to the country for support by a dissolution and general election, found it impossible to retain office in the face of a hostile House of Commons, and William was obliged to recall his former ministers. The personal influence of the sovereign, which had been favourable to Sir Robert Peel on that occasion, became at the commencement of Queen Victoria's reign the cause of his exclusion from office for two years. Owing to Lord Melbourne having been in office at the accession of Her Majesty, nearly all the ladies of the royal household were closely related to his ministers and chief political sup- porters. When his ministry, whose unpopularity had been growing since 1835, felt it expedient to resign in 1839, Sir Robert Peel, to whom the formation of a new ministry was entrusted, represented to the queen that he could not undertake the task unless he was permitted to make some changes in the royal household, by which her Majesty would cease -to be surrounded by ladies intimately connected with his political opponents. As this was not accorded to him he declined to accept office, and Lord Melbourne's administration was reinstated, until being, in 1841, in a minority in the House of Commons and in the constituencies, they again resigned. On this occasion Sir Robert Peel, in arranging the new ministry, was allowed to make the necessary changes in the royal household; and the removal from it, on a change of 260 History of the English Institutions ministry, of those ladies who are connected with the outgoing ministers, has ever since been the established practice. The importance which Sir Robert Peel attached to this matter is an indication of the extent to which he was sensible that the personal inclinations of the sovereign influence the course of public affairs, so that he felt it impossible to hold office while those inclinations were liable to be biassed by others in a direction adverse to his own policy. A memorandum given by the queen to Lord Pal- merston when secretary of state for foreign affairs in 1850, indicates the personal share which the sovereign takes in that branch of the public business. It required him to state distinctly what he proposed in a given case, in order that the queen might know to what she was giving her sanction. Any alteration of a measure after that sanction was given would be a breach of sincerity to the Crown, and be justly visited by the exercise of the sovereign's constitutional right of dismissal. The queen was to be informed of communications between him and foreign ministers; was to receive the despatches in good time, and be furnished with the drafts for her approval in suf- ficient time to make herself acquainted with their contents before they were sent off. 5 Ministers. The constitutional right of the Crown to dismiss its ministers, referred to in the queen's memor- andum, ^nables the prime minister and the Cabinet as a whole to exercise, through the Crown, a check upon and control over each individual minister in the depart- ment of which he is the special head. Thus, in the very year after the memorandum was written, Lord Palmerston was removed from his office in Lord John Russell's govern- ment, owing to his having adopted a tone towards the 6 See Hansard's Parliamentary Debates, 3d series, vol. cxix. p. 90. The Executive 261 French Government which the prime minister considered to be inconsistent with the policy determined upon by the Cabinet. The composition of the Cabinet has slightly varied from time to time, both before and since 1832 ; for since, as has been observed, the body has no legal existence, its constitution depends on the will of the Crown, that is, practically, of the prime minister. It has been the in- variable practice that the following ministers should be members of it : The Prime Minister, as First Lord of the Treasury, the Lord Chancellor, Lord President of the Council, Lord Privy Seal, and Chancellor of the Exche- quer ; and the Secretaries of State of whom there are now five for the Home Department, Foreign Affairs, War, Colonies, and India. In addition to these, from five to eight of the other ministers are usually admitted into it. In 1872 the following six had seats in it the First Lord of the Admiralty, President of the Board of Trade, Chief-Secretary for Ireland, Yice-President of the Committee of Council on Education, President of the Local Government Board, and Chancellor of the Duchy of Lancaster. The ministry in that year comprised, in addition to the members of the Cabinet, the First Com- missioner of Works and Public Buildings, the Postmaster- General, Attorney-General, and Solicitor-General, two junior Lords and two Secretaries of the Treasury, and two junior Lords and one Secretary of the Admiralty ; also the Lord Steward, Lord Chamberlain, Earl Marshal, Master of the Horse, and Cooimander-in-Chief, the last of whom holds office permanently, and is independent of changes in the ministry ; besides under-secretaries of the different departments, and special officials for Scotland and Ireland. The ministers are, as a rule, all of them members of 262 History of the English Institutions one Hotfse of Parliament or the other, though, of course, there is no legal necessity for their being so. On the other hand, certain restrictions exist as to the proportion of the ministry who can sit in the Lower House. Certain of the offices those designated with the prefix " Lord/ except the Lords of the Treasury and Admiralty are always held by peers ; and though, as has been already mentioned (see p. 246), the exclusion of the whole minis- try from the Lower House, which was once contemplated, was never carried into effect, yet until 1855 only two of the principal Secretaries of State, and two of the Under Secretaries could sit in it. In that year the number of each who were permitted to do so was increased to three ; and three years later, when the Indian department was added to the Government, it was changed to four. But one principal secretary and one under secretary are still inadmissible, and are, therefore, always chosen from the peerage. Growth of Executive Power. Complaint has sometimes been made that the gain which the country received from the Reform Act of 1832 in a more adequate representation of the people, has been acquired at a loss of firmness and stability in the executive power, owing to the frequent changes of ministry which have since taken place. It is no doubt true that the average duration of the Liberal and Conservative ministries during the forty years since 1832 has been con- siderably shorter than that of the Whig and Tory admi- nistrations in the century preceding that year. But whether the power of the executive has since 1832 been feebly wielded or not, the gradual augmentation of that power, which was noticed as in progress from the Eevolu- tion onwards (p. 250), has continued to be uninterruptedly maintained to the present time. The establishment of The Executive 263 the Police ana of the central Poor Law and Local Govern- ment systems, and of the Educational Department, have been already mentioned in ch. iii. Besides these, various powers of control over inland and marine com- merce, railways and other public modes of locomotion, merchant shipping, and navigation in general, have been from time to time, and are still continually, given to the Committee of the Privy Council known as the Board of Trade, while other administrative powers are nominal!;- entrusted to the Privy Council as a whole. 6 The police are under the control of the Secretary of State for the Home Department ; and the Local Government Board, Education Department, and Board of Trade, are largely composed of and are presided over by cabinet ministers, and therefore reflect the policy of the ministry ; while to the meetings of the Council as a whole, only those Privy Councillors are summoned who are members of or are in accord with the ministry for the time being in office. It is beyond the scope of the present work to do more than allude to the increase of the executive power which re- sulted from the transfer of the government of India from the East India Company to the Crown in 1858, pre- viously to which year the only means of interference on the part of the home government with the administration of Indian affairs had been through the Board of Control for India, established by Pitt in 1784, and remodelled in 1793. Military Forces. Nor is it in civil matters alone that the power of the central executive has been consoli- dated and strengthened. In 1871, after a bill had been introduced for suppressing the purchase of commissions in the army, but had been thrown out by the House of Lords, a royal warrant was issued, by the advice of the 6 See, ior instances of this, p. 195. 264 History of the English Institutions ministry, abolishing the practice; and the crown thus obtained complete control over the appointment of officers in the army. This warrant was followed by an Act which transferred to the sovereign, to be exercised through the Secretary of State for War and officers ap- pointed with his advice, all the jurisdiction and com- mand over the militia, yeomanry, and volunteers, which had been previously vested in the lord-lieutenants of counties ; so that the whole of these forces are now placed under the direct control of the War Office, and can be arranged and worked in connection with the regu- lar army. CHAPTER X. TAXATION. 1. Early English Finance. Before the Conquest the ordinary public expenditure was met, in the first place, by the rents of the folc-land, and the liability to which its holders were subject of assisting in public works, and providing sustenance for the king and high public officials during their progresses through the country a liability which was ultimately commuted for a fixed money pay- ment; and in the second place, by the obligation called the trinuda necessitas, which lay on the holders of all lands in the kingdom, except some church lands, and which consisted of burhbot, brigbot, and fyrd, or the repair of fortresses and of bridges, and military service. The hostilities with the Danes occasionally rendered necessary the further imposition of the Danegeld, for the purpose of buying off their incursions or maintaining a fleet to resist them. It was levied in the form of a tax of 2s. on every hyde of land, or of a contribution from Taxation 26$ each shire of a fully equipped ship, and was always imposed by the authority of the Witenageiuot. That body had also originally a voice in the disposition and management of the folc-land, but this appears in the eleventh century to have fallen almost completely under the control of the king. The king had, besides, a right to the fines and penalties levied for certain offences ; and also to duties on exports and imports ; but these duties were at that time of a very trifling amount. 2. Feudal Sources of Revenue. At the Conquest none of the old forms of taxation were at once abolished. The sheriff of each shire, for instance, paid a firma or com- position for the king's claims in respect of the folc-land and other matters : and the Danegeld was occasionally levied down to 20 Hen. 2. But they were gradually supplanted by_the feudal impositions established by their side, consist- , ing of the aids and reliefs from barons and military tenants in capite, as well as an annual tax payable by them^ under L the name of scutage or escuage, as a commutation for the forty days' personal service in the field, which they were feudally bound to render to the king every year; and the / annual taxes called hydage and talliage taxes which correspond to scuttage, but were exacted from the socage tenants of the king's demesne lands and from the in- habitants of the royal boroughs. The customs duties on exports^ and imports gradually assumed a more promi- nent place in the revenue, under the names of Jionnage and poundage, and prisage, the latter term being specially applied to the duty on imported wines. These duties were only part of a general system, which prevailed, of imposing tolls or taxes on transactions of trade ; the right to levy them being in many places enjoyed by the lord of the manor or district, while in others it belonged to 266 History of the English Institutions the king, as was, of course, the case in all the royal boroughs, lordships, and demesne lands. The revenue was also, as before the Conquest, augmented by the fines paid for certain offences. The power of the king to use the property and labour of private individuals for public purposes, and his right to purveyance, have been already noticed (ch. ii). Crown Lands. In the confiscations and redistribution of the soil of the kingdom, which followed the Conquest, the amount of land reserved in the hands of the king as royal demesne, popularly known as Crown land, was very large, and was subject to continual increase through for- feitures and escheats. On the other hand, grants and alienations of it were made on the most liberal scale by all the early kings, some of whom were so prodigal that they themselves, or their successors, were obliged arbi- trarily to resume what they had improvidently parted with. This policy of abandonment by the Crown of its landed possessions (which was perpetually persisted in, and, as we shall see, demanded eventually the restraint of Parliament) prevented the king from supporting himself in independence, as he might otherwise have done, upon the revenues of the Crown lands, and necessitatedjhis appeal _Jbr pecuniary assistance to the people a result of incalcul- able constitutional importance to the country, as the needs of the sovereign were taken advantage of to wring from him securities for good government and for the liberty oi the subject, to which in many cases he would not have consented, had not the grant to him of the requisite supply been made conditional upon his concession of them. Imposition and Collection of Taxes. As a matter of policy, the early Norman kings usually con- sulted their council of barons on the imposition of any extraordinary aid or tax; but the reference to them was Taxation 267 little more than a form, for no instance is recorded in which the demand of the king was refused, or even ques- tioned. The collection of the revenues was distributed throughout the shires, the sheriff of each shire being accountable for the amount due from it. The assessment of this amount, and of the proportions in which it was chargeable on the different lands, was sometimes ascertained by the sheriff in the county court, and sometimes by royal officers sent on circuit through the country under the direction of the chief justiciary. These fiscal circuits preceded the circuits for judicial purposes, for which they no doubt paved the way. They subsequently became united with the latter, and were ultimately superseded by them. In addition to circuits, the collection of the revenue led to the adoption of another institution, which has become one of the fundamental elements of our judicial system that ol trial by jury. In investigating the liability of the various lands and inhabitants of the county, the sheriff, or itinerant officers, as the case might be, were assisted by chosen men of the neighbourhood sworn to certify according to the truth. In the reigns of Hen. 2 and his sons the levying of taxes became more heavy, and at the same time more arbitrary. The scutage seems to have been first levied as a regular tax in 5 Hen. 2, to defray the cost of the expedition to Toulouse. The scutage, proving insufficient for the royal needs, was supple- mented by a tax on all the movables or personal effects in the kingdom. This tax at first amounted to one- tenth of the value of the movables, and, being raised to support the crusade against Saladin, was called the Saladin tithe. It subsequently became a very usual mode of raising money, and varied in amount between one-tenth and one-fifteenth of the value of the chattels, 268 History of the English Institutions the latter being the more common proportion. In llic. 1's reign, when the expenses of the crusades, and of providing the king's ransom, required to be met by extraordinary contributions, a new tax was levied on the land under the name of carucage, being so much for each caruca or plough. Magna Carta. Both in Eic. 1's reign and at the commencement of the following reign, some feeble opposi- tion was shown to the increasing exactions to which the people were subjected ; but it was in Magna Carta that the first determined effort was made to restrain extortions in taxation, and place it under the control of those who contributed to it. A clause was inserted in that instru- ment, by which the king bound himself not to impose, except through the General Council of the realm, any scutage or aid other than the three recognised feudal aids (1), for ransoming the lord's person; (2), for making his eldest son a knight ; and, (3), for providing once a suitable marriage for his daughter ; and these aids were not to be of an unreasonable amount. Care was taken to prescribe how the council for purposes of taxation should be constituted; namely, that the archbishops, bishops, abbots, counts, and greater barons should be summoned individually, and a general summons be sent, through the sheriffs and king's bailiffs, to all the king's tenants in capite. These clauses were not, however, confirmed by Henry III., nor do they appear in subsequent confirma- tions of the Charter. Control of the Great Council. Yet the principle thus affirmed was, partly no doubt from motives of evi- dent policy, or even necessity, in many cases observed, especially in the levying of carucage and the tax on movables, which were almost invariably voted by the Great Council. The primary object of summoning the Taxation 269 commons and clergy to this council was_ to obtain their consent to taxation a subject on which, as we saw in cE v., they were consulted long before they took part in legislation. And the right of self-taxation was recognised to the extent of each class of the community determining, independently of the rest what amount it would contribute. The lords made a separate grant, the knights voted their own quota, and the burgesses theirs, while the clergy decided for themselves the amount of their taxation. Hence it often happened that the rate of contribution varied very considerably in the different classes. A tax of a fifteenth on movables was frequently ob- tained by the king in exchange for a confirmation of the Great Charter and Charter of the Forests, with, from time to time, certain further concessions. This was the case in 1297 (25 Edw. 1) when the confirmation of the charters contained a promise by the king, for himself and his heirs, that thenceforth no aids, tasks, or prises, beyond the ancient customary aids and prises, should be taken except by the common assent of the whole realm, and for the common profit thereof. In the same year the energy ot Humfrey Bohun, Earl of Hereford and Essex and Con- stable of England, and Eoger Bigot, Earl of Norfolk and Suffolk and Marshal of England, also obtained the assent of the king to the Statute of Tallage, which enacted that no talliage or aid should be imposed or levied in the realm without the will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land; that no king's officer should take the corn, leather, cattle, or any other goods of a man without his will and assent; and that nothing should thenceforth be taken from sacks of wool under the pretext of male- tolte. 270 History of the English Institutions 3. Control of Parliament. In the reign of Edw. 3 the drain on the exchequer caused by the wars in France rendered necessary the imposition of frequent and heavy taxes. In 8 Edw. 3 an assessment was made of all the cities, boroughs, and towns of England, and the value of the tax of the fifteenth on the movables was per- manently fixed according to this assessment; so that from that time forward, whenever fifteenths were voted, as they continued to be until the end of the sixteenth century, a definite fixed sum was meant, being the fifteenth of the value assessed in that year. In 14 Edw. 3 the Lords and Commons, meaning by the latter the freeholders of the counties, granted to the king the ninth lamb, the ninth fleece, and the ninth sheaf for two years. The citizens and burgesses, at the same time, granted the ninth part of their goods, and the foreign merchants the fifteenth part of their goods. But it was expressly stipulated that these grants should not be taken as a precedent, and that the king's subjects should not thenceforth be charged to make any aid, or sustain any burden, except by the common assent of the prelates, earls, barons, and other great men, and commons of the realm, and that in Parliament; and that all the profits arising out of the grant then made, and from wards and marriages, customs and escheats, and other profits rising of the said realm of England, should be put and spent upon the maintenance and the safe- guard of the said realm, and of the wars in Scotland, France, and Gascony, and in no places elsewhere during those wars (14 Edw. 3, st. 2, c. 1). This is thejirst in- stance of Parliament assuming any control over the ex- penditure of the revenues. A few years later we find another instance of this, and also of a grant being made for a longer period than one year. In 18 Edw. 3 the Commons alone granted two-fifteenths of the goods of Taxation 271 the commonalty, and two-tenths of those of cities and boroughs, to be paid in two years, " so that the money levied of the same be dispended on the business shewed to them in this Parliament by the advice of the great men thereto assigned; and that the aids beyond Trent be put in defence of the North" (18 Eclw. 3, st. 2, c. 1). Eighteen years later the grant of a subsidy on wools, leather, and wool-fells, or woollen cloths, for the unusual period of three years, was made the occasion of passing an Act of Parliament to the effect, that after that time nothing should be taken or demanded of the Commons, except the ancient custom of half a mark; and that no subsidy, or other charge, should thenceforth, be granted or imposed upon wools by merchants or others, without the assent of Parliament. One instance of the appropriation of the supplies by Parliament occurs in the following reign, when it was enacted that a subsidy granted on wool should be wholly applied upon the defence of the realm of England, and the keeping and governance of the king's towns and fortresses beyond the sea, after the good advice of the lords of the realm, and other wise men of the king's council (5 Eic. 2, st. 2, c. 2). Taxation of the Clergy. After the cessation of the clergy to attend Parliament in Edw. 3's reign, they continued to tax themselves in Convocation, voting sub- sidies at the rate of 4s. in the pound, according to the valuation of their livings in the king's books. The sub- sidies so voted were, however, considered to require the confirmation of Parliament. Relative Power of the two Houses. After the withdrawal of the clergy from Parliament, the knights and burgesses were speedily amalgamated, and voted to- gether on all questions, including taxation. And after the middle of Edw. 3's reign, the two Houses acted toge- 272 History of the English Institutions ther in the matter, sometimes after joint deliberation. Thus, in 43 Edw. 3, it is stated that the Lords, with one assent, and afterwards the Commons, granted a subsidy on exported wool. In the two following reigns we find re- citals that the Commons grant, with the assent of the Lords. As late, however, as Edw. 4's reign, the Court of King's Bench laid down that a money grant by the Com- mons would be binding on commoners without the assent of the Lords. The grants were originally made in the shape, not of bills, but of written indentures, tendered to the king and entered on the Eoll of Parliament. Unless accompanied by some condition or relief of grievances having the effect of a new law, they do not appear as statutes till the time of Hen. 8. In the early part of his reign they are said to be enacted by Parliament alone, but latterly the king's name is introduced. The preamble, however, has continued to the present day to be in the form of an address to the sovereign. With a view to securing the independence of the two Houses in respect of the grants solicited from them by the Crown, a promise was obtained from Henry IV., and recorded on the Rolls of Parliament, to the effect that no report should be made to the king of any grant made by the Commons and assented to by the Lords, or any communications which passed in reference to such grant, until the Lords and Commons had come to an agreement about it. Subsidies. About the time of Eic. 2 and Hen. 4, the scutage, hydage, and talliage gradually fell into disuse, being replaced by subsidies, which were a tax imposed upon persons in respect of their reputed estates, after the nominal rate of 4s.>in the pound for lands, and 2 8s. in the pound for goods the goods of aliens being liable to twice that amount. Increase of Taxation. About the same time we Taxation 273 find a growing liberality on the part of the Lower House in the grant of supplies to the Crown. This liberality, however, was not always responded to by the people at large, as is shown by the insurrection under Wat Tyler, occasioned by the extraordinary imposition of the poll tax in 1381, the rebellion in Yorkshire in 1489, and the revolt in 1525. In 1397 a subsidy on wools, leather, and wool-fells, was granted to .Richard II. for his life. The practice of making a grant for the life of the sovereign, of which this was the first instance, soon became common. A similar grant was made to Henry V. in 1415^ after the taking of Harfleur. And from the time of that monarch till the accession of Charles I., a grant of tonnage and poundage for the king's life was made in the first Parlia- ment of every reign. Loans and Benevolences. The revenues of the Crown from the recognised sources not being sufficient to meet its requirements, other means of raising money were resorted to by our sovereigns. Eichard II. frequently ex- torted forced loans from his subjects, and Edward IV. did the same thing under a different form, by taking what were nominally benevolences or voluntary gifts instead. These were abrogated by Parliament in Eic. 3's reign, but were renewed by Henry VII., in whose reign they received the sanction of the Legislature. 4. Reigns of Elizabeth and James I. Until towards the end of Eliz.'s reign the supply voted for any one year by the Commons never exceeded one sub- sidy on lands and two fifteenths on goods, while that granted by the clergy was limited to one subsidy. The fifteenth had, as we have seen, been a stereotyped sum since 8 Edw. 3, and the value of the subsidy had also become fixed ; so that while money was depreciated, and 274 History of the English Institutions land and other property rose in pecuniary value, the yield of the lay subsidy remained at 70,000, and that of the clerical subsidy at 20,000. These sums became under the altered circumstances inadequate to meet the public expenditure ; and infl58jy on the occasion of the Spanish Armada, the Commons for the first time voted two sub- sidies and four fifteenths. From that time onwards the number of subsidies and fifteenths voted became larger. The amount which they produced was, however, still insufficient to meet the necessities of the Crown, and throughout Eliz.'s reign the practice of raising loans by circularletters or privy seals was resorted to, but they were always punctually repaid. James I. had recourse, for the purpose of replenishing his exchequer, to the sale of peerages and the new order of baronetcies, and also of monopolies and exemptions Jrom penalties, 'until these were declared illegal in 1624. He Iilso7 of his own authority ,jmjx^seL arbitrary duties on articles of commerce, and his right to do so, being called in question, was upheld in courts of law. / r-t t Post-Office. The establishment of the post office dates from Ja. 1's reign; but a regular postal service was first set up under the Commonwealth, and was per- petuated after the Restoration, with the addition from time to time of various improvements and rearrangements. Reign of Charles I. Charles I., on succeeding to the throne, laid before his first Parliament an estimate of 300,000 as the probable cost of preparing a fleet for the war with Spain ; but the Commons declined to vote him half that amount. They at the same time further showed their determination to keep a check upon the king's revenue, by passing a Bill which granted tonnage and poundage for two years only, instead of for the king's life, as was customary. The Bill was in. consequence thrown Taxation 275 out by the Lords. After the dissolution of Parliament, which immediately followed on these proceedings, Charles, . being in urgent want of money for the expenses of the ' war, issued commissions for 9ompulsory loans, and levied *" the tonnage and poundage as if it had been voted, as well "^} as other heavy duties on merchandise. And when his second Parliament was dissolved without having voted any supplies, he proceeded to issue privy seals for the loan of It money from private persons. Moreover, the impost called _. ship-money, for whichTa precedent was found in the reign of Eliz a was levied upon all seaports without distinction for the equipment of a fleet. He went further ; for a proposal having been made in the late Parliament for a vote of four subsidies, which, however, had never been seriously entertained, much less voted, Charles caused / Jbhem to be levied as if they had been voted. The disastrous expedition to the Isle of Ehe absorbed the sums thus raised, and in 1628 the king was forced to summon his third Parliament. This Parliament presented to the king the famous Petition of Eight, in which it was provided that no man should thereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parlia- ment. The assent of Charles to this petition obtained for him a vote of the then unprecedently large amount of five subsidies; but as even this proved inadequate for his wants, the levy of tonnage and poundage, which remained unvoted, was continued in defiance of the petition. And, after the dissolution of Parliament in 1629, all persons possessed of landed property to the amount of 40 per annum were required to accept the /, honour of knighthood, which involved heavy fees to the Crown, or pay a fine. Moreover, monopolies were revived f in every department of trade, and were thrown into the 276 History of the English Institutions hands, not of individuals, but of companies. Dispensa- tions from the penal laws were also again freely sold, and forced loans were extracted from the occupiers of Crown lands, for which they were compensated by a confirmation and extension of their tenure of the land. Charles at the same time issued a proclamation for the levying of ship-money, not only on the coast towns, but throughout the whole of England. This unparalleled imposition on the inhabitants of the inland counties was resisted by Hampden, who, on being tried for his refusal to pay, was condemned by seven out of the twelve common law judges. The levy of the impost was in consequence continued, and a general forced loan was added to it. By means of the revenues thus illegally raised Charles was able to carry on the government for eleven years with- out summoning Parliament; but they were at length ex- hausted by the Scotch insurrection, and a Parliament was convened in the summer of 1640.. It was, however, almost immediately dismissed; and, aided by the200,000, for the raising of which he induced his Council of Peers at York to tax themselves (see p. 143), Charles struggled on until November in that year, but was then obliged to convene the Parliament, which proved his last, and is known as the Long Parliament. From, the day of the meeting of this Parliament Charles was powerless to impose any further illegal taxation upon the people. By one of its first measures it was declared and enacted that it was and had been the ancient right of the subjects of the realm, that no subsidy, custom, impost, or other charge whatsoever, ought to or might be laid or imposed upon any merchandise exported or im- ported by subjects, denizens, or aliens, without common consent in Parliament (16 Cha. 1, c. 8). Reign of Charles II. The acquisition by the Com- Taxation 277 inons of complete control over taxation has from the first produced an effect quite the reverse of diminishing its amount. During the Commonwealth the Parliament imposed heavy and, in some respects, novel burdens on the people. Shortly after the Eestoration, when all the oppressive feudal tenures with their incidents, and also the rights of purveyance and pre-emption, were abolished, the Commons granted to the king, as a compensation for the loss of his feudal revenues, an hereditary excise on beer_and some other liquors, after a precedent set in the time of the Commonwealth, when an excise duty of double the amount had been levied on the same articles by ordinance of Parliament. Other excise and customs duties were added during the king's life, and these duties, together with the tax of 2s. on every house, called hearth money, and a few other trifling taxes, and the hereditary revenues from the post-office, the Crown lands, and some other small sources, gave to Charles II. an income of XI, 200,000; being a considerable improvement upon that which had been enjoyed by his father, and which, during the years 1637-41 had not averaged more than 900,000. The king was at this time obliged to pro- vide out of the royal revenues not only for his own personal expenses, but also for the cost of government and the defence of the realm. The various indirect modes of taxation, of which mention has just been made, took the place of subsidies, which were discontinued in 1665. Two years previously the hearth money, which had at first been imposed annually, was made perpetual, thus furnishing the first instance of a permanent tax in this country. Control of the Commons. But while the Com- mons dealt thus liberally with the king, they, during this reign, successfully asserted their exclusive right to deter- 278 History of the English Institutions mine "as to the matter, the measure, and the time" of every tax imposed on the people. Since the first Parlia- ment of Charles I. the Commons had omitted the name of the Lojds from the preamble of all money Bills, reciting" the grant as if wholly their own, though of course in the enacting part mention of the sovereign and Lords was introduced as in other hills. In the Convention Parlia r rrient, and for ten years after the Restoration, the Lords made several alterations in money Bills, which were acquiesced in by the Commons. But in 1661. the intro- duction in the Upper House of a Bill for paving the streets of Westminster gave rise to a question whether the Lords could initiate a Bill laying a charge upon the people. And in 1671 their right to make amendments in money Bills was successfully disputed by the Commons. Since that year, whenever the Lords have suggested amendments in a money Bill which the Lower House has been disposed to accept, it has invariably thrown out the amended Bill, and introduced a fresh Bill embodying the amendments. Nor did the king find the Commons uniformly compliant in meeting his pecuniary needs. In JLI ^ nev refused a su pply to discharge the anticipations on his revenue, and in 1677 they declined a further sup- ply till his Majesty's alliances were made known. In the next year also they refused the king an additional revenue. In the same reign they began to scrutinize the public (^h-^. expenditure, and introduced the salutary plan of appro- priating their grants to particular purposes. The latter practice dates from _1 665,,. when a proviso was introduced in an Act for granting 1,250,000 to the king /6 6^ (17 Cha. 2, c. 1), that the money raised by virtue of that Act should be applicable only to the purposes of the war. Two years later was passed an Act which appointed com- missioners, 'vith extensive powers as to auditing the public Taxation 279 accounts, and as to investigating frauds in the expenditure of public money. Taxation of the Clergy. The clergy continued to tax themselves, by voting subsidies in Convocation, until 1664, when the practice was -discontinued by a verbal agreement between Archbishop Sheldon and Lord Chan- cellor Clarendon, with the tacit consent of the clergy, who esteemed it as a boon. In the following year the clergy were for the first time charged with a tax in common with the laity, and were expressly exempted from liabi- lity to vote subsidies in Convocation. Their right to tax themselves was, however, reserved ; but since the discontinuance of subsidies it has never been exercised^ National Debt. The reign of Qha^^^Js^also re- markable, from a fiscal point of view, as being the period of the commencement of a national debt. The profession of banking had sprung up during the troubles of the civil war, when large sums of money were deposited for safe custody in the hands of rich and trustworthy goldsmiths. This practice Avas continued after the Restoration; and though in 1665 the bankers did not consist of more than five or six persons, they speedily became of sufficient im- portance to have extensive monetary dealings with the exchequer. At the outbreak of the Dutch war in 1672, after the bankers had advanced a sum of .664,263 to the nation, payment at the exchequer was stopped ; and in- stead of repayment of the loan, they were promised interest upon it at the rate of 6 per cent, per annum. This interest was paid down to the year 1683, when it was suspended until Christmas 1705; from which time, by an Act cf 1699, the excise was charged with 3 per cent, interest on the principal sum of 1,328,526, redeemable on payment of a moiety; but no compensation was given for the loss of arrears of interest. 280 History of the English Institutions Reign of James II. James II., on coming to the throne, issued 8 proclamation for the payment of customs, which had expired at the death of his predecessor an illegal proceeding, which was, however, acquiesced in by the Parliament of 1685. The revenue of this king, from the same sources as those appointed for that of Charles II., amounted on the average to 1,500,964. His demand of 1,400,000 from the Commons in 1685, was met by a grant of half that sum only ; but they imposed certain additional duties for a period of eight years, which added annually to the royal revenue a sum of 400,000. The annual expenses of the Crown were at this time, upon an average, 1,700,000. 5. Control of Commons. The imitation by James II. of his father's practice of raising money without the authority .of Parliament led to the insertion in the Bill of Eights of a clause which once more, and for the last time, laid down the principle " that levying money for or to the use of the Crowne by pretence of prerogative without grant of Parlyament for longer time, or in other manner than the same is or shall be granted, is illegall." Not a single attempt has since been made to infringe this prin- ciple, but instances have occasionally occurred of an interference by the Lords in taxation. In 1701_ they passed a resolution, that whatever ill consequences might arise from the supplies for the year being so long deferred, were to be attributed to unnecessary delays of the House of Commons. In VT 6 3 they opposed the third reading of the Wines and Cider Duties Bill, and it was observed that this was the first occasion on which they had been known to divide upon a money Bill. Moreover they occasionally, without incurring the animadversion of the Lower House, rejected or postponed Bills embracing other subjects Taxation 281 incidentally affecting supply and taxation. But when, in 1790, they amended a Bill for regulating Warwick Gaol, which had been sent up to them from the Lower House, by shifting the proposed rate from the owners to the occupiers of the land, the Commons in consequence threw out the Bill. Upon the whole, however, the exclusive right of the Commons to grant taxes has been admitted since the Eevolution, as existing in the terms in which it has been defined by Lord Chatham, when he says, " Taxation is no part of the governing or legislative power. The taxes are a voluntary gift and grant of the Commons alone. In legislation the three estates of the realm 2 are alike con- cerned ; but the concurrence of the peers and the Crown to a tax is only necessary to clothe it with the form of a law. The gift and grant is of the Commons alone." The grants of the Commons since the Eevolution have been founded on annual estimates laid before them on the responsibility of ministers, and strictly appropriated to the service of the year. This control over the public expenditure, while it has given to the Commons a pre- ponderating power in the state, has made them ever ready to vote the sums which the Crown through its ministers has demanded from them. Their conduct in this respect has furnished a striking contrast to the behaviour of the House before the Eevolution. It is true that, while prepared to vote the amount required of them, they have sometimes refused to sanction the precise mode in which the ministers of the Crown have proposed that it should be raised. But the temporary delays in 1701, which have been already noticed, and the attempt to embarrass Mr Pitt's ministry in 1784, by stopping the supplies^ a course in which they found themselves unable to persist, 2 He should have said " estates of Parliament," see p. 138, note 1. 282 History of the English Institutions constitute the nearest approaches on record since the Revolution to a refusal by the Commons to meet the pecuniary requirements of the executive. The subsequent enormous increase of the annual expenditure and the creation of a vast national debt bear witness alike to the magnitude of the demands made \ipon them, and to the readiness with which those demands have been acceded to. Public Revenue. The annual revenue of the Crown in time of peace was fixed after the Eevolution at __lj2pO,000, of which one-half was devoted to the main- tenance of the king's government and the royal family, or what was afterwards called the_civil list, and the other half to the public expenses and contingent outgoings. But, in 1697, the Commons resolved that, in acknowledg- ment of the services done by William to the country, a sum not exceeding 700,000, should be granted to him for life for the support of the civil list. The supplies annually voted during the war which began in 1689 were about five millions, or more than double the revenue ot James II. From that time the rate of the annual expen- diture continued gradually to advance, but the periods of its chief increase were the American war of independence, and the great French war. Civil List. While the necessities of the country thus occasioned an augmentation of the national expenditure for public purposes, the royal civil list was maintained at 700,000 till the accession of George II. ; but in each of the two preceding reigns debts of a million were incurred upon it, which were discharged by Parliament by loans charged on the list itself. When George II. came to the throne, it was arranged that if the hereditary revenues did not make up the civil list to 800,000 a year, Parliament should supply the deficiency, and this it was in fact Taxation 283 called upon to do. At the commencement of the follow- ing reign Parliament obtained a still further control over the appropriation of the revenues, by the agreement of George III, to accept 800,000, which was afterwards raised to 900,000, as the amount of his civil list, an? to surrender lor his life the hereditary revenues, with the^ of any surplus which might arise from them, to be dealt with by Parliament for public purposes. The nation profited considerably by this arrangement, notwith- standing that various public expenses, having no connec- tion with the king's personal establishment, were from time to time withdrawn from the civil list and charged on the general revenues instead, and that the gain to the nation was to a certain extent diminished by the necessity of periodically defraying debts incurred by the king, which he was unable to meet out of the appointed civil list. On one of these occasions in 1782, the expenditure of the civil list was regulated and considerably curtailed by Parliament. After surrendering the hereditary revenues, George III. and his successor still continued to enjoy a considerable income arising from_Admiralty and other sources, which was wholly beyond the interference of Parliament. William IV. and Queen Victoria, however, surrendered not only the hereditary revenues, but also all these other sources of income; so that Parliament has now control over all the public revenues of the Crown, except (if this can be properly termed part of the public revenues) the income derived from the estates of the Duchies of Lancaster and Cornwall, which belong tio the sovereign and the Prince 1 of Wales respectively. Crown Lands. Having considered the vast increase which took place in the public expenditure after the Revolution, it remains to inquire how this expenditure was met. Very little towards it was contributed by the 284 History of the English Institutions Crown lands. The mode in which successive sovereigns squandered away the landed property of the Crown has been already mentioned. A large portion of that which had been sold by Charles I. to meet his necessities was recovered at the Eevolution by annulling the sales, but only to be again diminished by the prodigal grants of the last two Stuarts. William III. in this respect showed no improvement upon his predecessors, and some of the grants which he made were recalled by the authority of Parliament. At length, at the commencement of Anne's reign, the small remnants of the landed possessions of the Crown were effectually preserved for the future by an Act which prohibited any absolute grants of them, and even pre- scribed the limits as to length of time, and other con- ditions, under which they might be let on lease. Since then the Crown lands have received some additions from the forfeitures after the rebellions in 1715 and 1745, and have gradually improved in value with the rest of the land of the country. Duties. During the two reigns which immediately followed the Revolution, permanent duties Avere granted on salt, paper, and coffee, and stamp duties on various documents were also imposed. Excise duties, other than the hereditary duties, were granted during the lives of William and Mary, while the customs duties were limited to four years. From this time onwards there was a gradual multiplication of the customs, excise, and stamp duties and licenses. While they were all imposed mainly with a view to meet the expenses of our wars, the customs duties were also considered to serve the additional purpose of protecting home manufactures, by laying foreign goods under a disadvantage in competing with them, and by checking the withdrawal of raw material out of the country. Taxation 285 As a further artificial stimulus to the industry of the country, manufactured articles, which, if consumed or used at home, were subjected to excise duty, were, if exported, allowed a bounty or a drawback of that duty. Some idea of the number and complication of these duties previously to 1787 may be gathered from the fact that Mr Pitt, in consolidating them during that year, moved no less than 2537 resolutions on the subject. The increase of the duties, in addition to its inherent evils, gave rise to a gigantic system of smuggling, which it required a heavy expenditure to keep in check. Mr Pitt exerted himself to regulate the duties during the first half of his administration, but the outbreak of the great French war required their reimposition with double intensity, and no decided attempt to reduce them was made until the reign of Queen Victoria. Direct Taxation. Soon after the Revolution, a considerable falling off in the customs and excise duties led, in 1690, to a kind of revival of the old subsidies, in the imposition of an aid or a land-tax of 3s. in the pound, which was afterwards annually granted together with a poundage on personal property and on pensions and official salaries, and was usually at the rate of 4s. in the pound, until in 1798 it was made perpetual. Pro- vision was at the same time made for its redemption by landowners by payment at once of a lump sum by way of composition. This arrangement was probably adopted under the expectation that all owners of land would hasten to avail themselves of it, and that so the whole land of the country would in a short time be entirely freed from the old tax, and be available for the imposition of a new tax. This expectation was, however, disappointed ; a large portion of the land-tax of 1798 remains unredeemed, and is annually paid to this day; and it has therefore 286 History of the English Institutions never been possible to re-tax those lands which have been relieved of it. In addition to the land-tax, a per- manent tax on houses was imposed in Will. 3's reign, assessed according to the number of windows in each house, and this was followed by other assessed taxes levied on objects or articles of domestic use, such as servants, horses, dogs, and carriages. Legacy Duty. Previously to 1796 a small revenue had been derived from successions to personal property, owing to the requirement that stamps should be affixed to probates of wills, letters of administration, and receipts for legacies; but in that year Mr Pitt proposed a per- centage tax on successions to both landed and personal property. The opposition to the former was so great that he was obliged to divide the measure into two bills ; and while he carried the legacy duty or tax on personal successions, he failed to carry the proposed impost on successions to landed property. Income Tax. In 1797, the financial depression of the country led to the substitution of a paper currency for cash payments, which an Act of that year prohibited the bank from making, except in case of sums below twenty shillings, and which were not resumed until 1819. To meet the financial embarrassments, Pitt tripled the assessed taxes, and in the 'following year imposed, for the first time, a uniform tax on all incomes except those under 200, those below that amount being either sub- jected to a smaller tax or exempted altogether, according as they nearly approached that figure or fell far short of it. The first imposition of the tax was signalised by voluntary contributions in aid of it by public men beyond what was legally required them. Thus Pitt, Dundas, the Speaker, and the two chief justices, subscribed 2000 each during their continuance in office, and the king Taxation 287 added his name to the subscription list for 20,000 a- year. The income tax was removed in 1802, after the peace of Amiens, but was again imposed under the name of the property tax in 1803, from which time it remained in force until 1816. Penal Taxation. In addition to the modes of rais- ing money already enumerated, with which we are familiar at the present day, other expedients were adopted which would not now be countenanced. In the early part of the 18th century the penal laws against Eoman Catholics were made use of for fiscal purposes. It had been the practice to insert in the Land Tax Acts a clause rendering Popish recusants liable to pay at a double rate. But, in addition to this, it was arranged in 1715 that the two-thirds of the income of their lands, which were by i;iw i- 'iii-it;il>le to tin; (>o\vn, should lie applied towards 1 the expenses of suppressing the rebellion of that year ; and in J.722, a direct tax was levied upon all Papists above the age of 18 possessed of any property, the pay- ment of which was to secure exemption from all other forfeitures and penalties. This tax was not, however, repeated in subsequent years. Lotteries. The evil effects of lotteries on public morality were recognised in an act of 1699, which pro- hibited them under a heavy penalty, designating them as public nuisances, and declaring that any licence to carry them on should be void. But notwithstanding this enactment, which was enforced by many subsequent statutes, it was considered expedient to make an excep- tion for the public service ; and acts authorising the Treasury to raise specified sums by means of lotteries were passed year after year until 1823, after which the practice was discontinued. National Debt. But besides the various forms of 288 History of the English Institutions taxation imposed to meet the current expenditure, it appeared expedient that, when this was increased by a costly war, some portion of it should be spread over a series of years by contracting a public loan. A precedent for this had, as has been mentioned (p. 279), been fur- nished before the Eevolution, and in 1694 the national debt was commenced in its present form by the raising of a loan of 1,200,000, at 8 per cent., the subscribers to which were incorporated, with special privileges, as " The Governor and Company of the Bank of England." The practice thus begun was in itself by no means unreason- able ; for if the interests of the nation imperatively required a special outlay at a particular crisis, it was fail that the prosperity of future years should be called upon to bear some portion of the outlay, to which it in part might be said to owe its existence. It was, however, by no means easy to fix the proportion which in any given case might thus be fairly charged on posterity ; and, the precedent having been once set, statesmen were under a great temptation unduly to defray the expenses of govern- ment by the pleasant device of a loan, instead of by imposing an adequate amount of taxation. In the case of the debt of 1694, Parliament reserved the right to redeem it at any time after 1 705 upon a year's notice ; and upon this being done, the Bank Corporation was to be dissolved. Instead, however, of this taking place, additional money was from time to time procured in the same manner, and the debt which, at the close of Wil- liam's reign, amounted to upwards of 16,000,000, was raised in the following reign to 54,000,000. The unfunded debt, or that which was borrowed on exchequer bills and bonds for merely temporary purposes, was always paid off within a limited time ; and the funded debt was slightly reduced in Geo. 2's reign, and during Taxation 289 one or two intervals afterwards. But, upon the whole, after the accession of Geo. 3, it was rapidly augmented, 121,000,000 being added to it during the American War of Independence, and 601,000,000 during the great French war; at the close of which it stood at its highest figure, 840,850,491 involving an annual charge to the nation of 32,000,000 for interest and management. Since then it has been gradually reduced, so that in 1875 it amounted to about 775,000,000. With a view to a systematic reduction of it, a per- manent sinking fund of a million a-year was set on foot by Mr Pitt in 1786, and was for many years adhered to, even when it was necessary to borrow the million thus set aside, and many millions besides. But the futility of borrowing for the purpose of paying off was recognised in 1829, and the practice was accordingly abandoned. Since that year the reductions in the debt have been effected exclusively out of the excess of revenue over expenditure. 6. House of Lords. The last instance of the inter- ference of the Lords in matters of taxation occurred in 1860, when they rejected a bill for the repeal of the duties on paper, after bills for the increase of the income tax and stamp duties, to make up the deficiency which the repeal would occasion, had actually received the royal assent. They were fortified in this course by the fact that the bill had only been carried in the Commons by a majority of 9, and the Lower House contented itself with passing resolutions affirming its exclusive right of granting aids and supplies to the Crown, and its power to maintain that right inviolate. The proposed repeal was postponed till the following session, when, in order to preclude the possibility of a second interference of the Upper House, the clauses for effecting it were inserted in 290 History of the English Institutions a bill by which customs and excise duties were granted for the year. Civil List. The annual sum to be paid to Queen Victoria out of the consolidated fund of the United Kingdom for the civil list, or, as it was expressed, " for the support of her Majesty's household, and of the honour and dignity of the Crown," was fixed at the commencement of her reign at 385,000, at which figure it has ever since remained. Independent annuities have, however, from time to time been settled upon the Queen's children as they have attained full age or have married. The Queen and Prince of Wales have likewise derived a benefit from the general rise of the value of land, in an increase of the income which they have respectively received from the possessions of the Duchy of Lancaster and Duchy of Cornwall. The annual revenues of the former amounted in 1872 to about 52,000, giving a net income of 32,000 after deducting the expenses of management ; while those of the Duchy of Cornwall were at the same time about 91,000, which yielded to the Prince 65,000, after a similar deduction. Public Expenditure. In spite of the almost unin- terrupted peace which the country has enjoyed since 1832, the annual public expenditure has increased with the wealth of the nation and the abundance of money. In Geo. 4's reign it averaged about 55 millions, and during Will. 4's reign it was more than once reduced below 50 millions. But the increase during the Crimean War (1854-56) has been very nearly maintained ever since ; the expenditure, which was 75 J millions in 18556, having been only one million less in 1868-9, when it was swelled by the cost of the Abyssinian expedition, and five millions less in 1872-3, when there was no special cause for outlay ; while in 1873-4 the Ashantee war raised it to 76 millions. Taxation. 29 1 Sources of Revenue. From the Crown lands the country at present derives a net annual revenue of 375,000. The adoption during the last thirty years of the policy of free trade, instead of that of protection, has led to the repeal of almost all the customs duties, and a great reduction in the rate of the remainder. The repeal of the import duties on corn was vehemently opposed as prejudicial to the agricultural interests of the country, but was after a considerable struggle effected by Sir Eobert Peel in 1847. And in 1849 the machinery for collect- ing the excise and stamp duties was simplified by the amalgamation of the Commissioners of Excise and Com- missioners of Stamps and Taxes into one Board of Commis- sioners of Inland Eevenue. Such has been the enormous development of our commerce that the few articles such as wines, spirits, tobacco, tea, and coffee upon the impor- tation of which duties on a small scale are still charged, now yield about 20,000,000, or nearly as large a revenue as was derived from the 1100 articles charged with duty in 1842. The number and scale of the excise duties has also been considerably diminished; yet in 1874-5, they produced a revenue of over 27,000,000,* or about double that which they produced thirty years ago. In like manner, since the introduction of the penny post in 1839, at the instance of Mr Rowland Hill, the net revenue of the Post Office has considerably Increased, being now over 5 \ millions, instead of under 2| millions, notwithstanding that in 1870 the rates of postage*^ were further lowered. Attached to the Post Office, LL &< j*, the Government has now under its control the entire telegraphic system of the country, the purchase of which from the various telegraph companies was sanc- 1 This sum, however, includes the imposts transferred to the excise iri 1869 (see p. 202). 292 History of the English Institutions tioned by Parliament in 1868. The financial gain to the country from the working of the telegraphs is not at present large; but the receipt of revenue, both from them and from the Post Office, is only a secondary considera- tion, and is subordinated to their main object of provid- ing the public with the cheapest, and at the same time most efficient means of inter-communication which can be established. The income tax, which had been discontinued in 1816, was reimposed by Sir Eobert Peel in 1842, at the rate of 7d. in the pound for a period of three years, on the under- standing that it was to be remitted at the end of that period. But it has ever since been continued, though its amount has varied between 16d. (during the Crimean war) and 2d., according to the exigencies of the public service. In 1853 Mr Gladstone, as Chancellor of the Exche- quer, succeeded in passing the measure, which Mr Pitt had failed to carry in 1796, for imposing a tax on succes- sions to real property, which became thenceforth liable to duty on the same scale as that which had been paid since Mr Pitt's time on successions to personal property, under the name of legacy duty. Down to 1851 the injurious practice of assessing houses according to the number of windows or lights had offered a direct encouragement to bad lighting and bad ventila- tion, but it was then abandoned, and the rational method adopted of taxing houses in proportion to their rental, those whose rental was below 20 being entirely exempt. In 1869 Mr Lowe made an important change in the mode of collecting the imposts in respect of male ser- vants, carriages, horses, and armorial bearings ; repealing the assessed taxes previously payable upon them, and requiring that excise licences should, at the commence- Taxation 293 ment of every year, be taken out for the use of them instead. The present immense material prosperity of the country is evidenced by the fact that the revenue from the various sources above enumerated amounted, during the twelve months ending March 31st 1874, to .77,335,657, or 3 1 millions more than its amount had been estimated at in the budget of 1873 ; and that, although a consider- able reduction in taxation was made in consequence, it fell very little short of 75 millions in 1874-5. CHRONOLOGICAL TABLE SHOWING AT INTERVALS THE DATES OF THE SESSIONS OF PARLIAMENT ACCORD ING TO THE CORRESPONDING YBARS OF THE CHRISTIAN ERA, AND OF THK REIGNS OF THE ENGLISH SOVEREIGNS, AND THE DATES OF THE COMMENCE- MENT OF THB REIGNS FROM A.D. I2l6. A.D. 1216, Oct. 28, . HENRY III. 1235-6, ... 20 Hen. 3. 1267, .... 52 Hen. 3. 1272, Nov. 20, . EDWARD I. 1285, .... 13 Edw. 1. 1295 23 Edw. 1. 1297 25 Edw. 1. 1300 28 Edw. 1. 1307, July 8, . . EDWARD II. 1315-6, .... 9 Edw. 2. 1326 (7),* Jan. 25, EDWARD III. 1335 9 Edw. 3. 1344 18 Edw. 3. 1357, .... 31 Edw. 3. 1363-4, .... 38 Edw. 3. 1370-1, . . .45 Edw. 3. 137V, June 22, . RICHARD II. 1381 5 Ric. 2. 1388 12 Ric. 2. 1399, Sept. 30, . HENRY IV. 1400-1, .... 2 Hen. 4. 1405-6, .... 7 Hen. 4. 1412 (3),* Mar. 21, HENRY V. 1420, .... 8 Hen. 5. 1422, Sept. 1, . . HENRY VI. 1429 8 Hen. 6. 1435 14 Hen. 6. 1444-5, .... 23 Hen. 6. 1460 (1),* Mar. 4, EDWARD IV. 1472, .... 12 Edw. 4. 1483, Apr. 9, . . EDWARD V. 1483, June 26, RICHARD III. 1485, Aug. 22, HENRY VII. 1495 11 Hen. 7. 1509, Apr. 22, HENRY VIII. A.D. 1512, ..... 4 Hen. 8. 1523, . . . 14 & 15 Hen. 8. 1533-4, .... 25 Hen. 8. 1541, ... 32 Hen. 8. 1546 (7),* Jan. 28, EDWARD VI. 1551-2, ... 5 & 6 Edw. 6. 1553, July 6, . . MARY. 1554-5, . . 1 & 2 Ph. & Mar. 1558, Nov. 17, ELIZABETH. 1562-3 ..... 5 Eliz. 1580-1, . . . 23Eli2. 1592-3, v . . . 35 Eliz. 1601, .-*... 43 Eliz. 1602 (3),* Mar. 24, JAMES I. 1605-6, .... 3 Ja. 1. 1609-10, ... 7 Ja. 1. 1623-4, .... 21 Ja. ]. 1625, Mar. 27, . CHARLES I. 1627, . . . 3 Cha. 1. 1640, .... 16 Cha. 1. 1660, .... 12 Cha. 2. 1665 ..... 17 Cha. 2. 1670, .... 22 Cha. 2. 1679 ..... 31 Cha. 2. 1684 (5 ,* Feb. 6, JAMES II. -RVV, IS Feb. 13, 1694, . 6 & 7 Will. & Mar. 1695-6, . . . 7 & 8 Will. 3. 1700-1, . . 12 & 13 Will. 3. 1701 (2) * Mar. 8, . ANNE. 1706-7 ...... 6 Ann. 1714, Ang. 1, . . GEORGE I. 1719-20, ... 6 Geo. 1. 1727, June 11, . GEORGE II. * It must be borne In mind that under the old style until 1751 Inclusive, the year was reckoned as beginning on the 25th of March. (See 24 Geo. 2, c. 23.) 296 Chronological Table A.D. A.D. 1729-30, . . 3 Geo. 2. 1825, . . . 6 Geo. 4. 1739-40, . . . 18 Geo. 2. 1829, . . . . 10 Geo. 4. 1749-50, . . . 23 Geo. 2. 1830, June 26, WILLIAM IV. 1760, Oct. 25, . GEORGE III. 1832, . . . 2 & 3 Will. 4. 1770, . . . 10 Geo. 3. 1835, . . . 5 & 6 Will. 4. 1779-80, . . 20 Geo. 3. 1837, June 20, VICTORIA. 1790, . . . 30 Geo. 3. 1840, . . . 3 & 4 Viet. 1801, . . . . 41 Geo. 3. 1850, . . . 13 & 14. Viet. 1810, . . . 50 Geo. 3. 1860, . . . 23 & 24 Viet. 1820, Jan. 29, . GEORGE IV 1870, . . . 33 & 34 Viet. INDEX AND GLOSSARY [In the case of words which have been explained In the body of the work, the explanation is not repeated in the index.] Abbots .... 6, 13, 16 Acts of Parliament 185, 194, 196 Admiralty Court 211, 213, 220, 227, 230 Afforest [turn into forest] 19 Aid [contribution from a tenant to his feudal lord] 8, 17, 27, 265, 268-9 Aliens 12, 19, 23, 36, 54-6, 65-7 Appropriation of revenues 249, 270-1, 278, 281 Army (See also Military Service) 37, 56-9, 242, 263 Array, Commissions of 24, 37 Ashbyv. White . . . 225 Assize [trial] 204 grand .... 207 [The word also means a law, and an assessment.] Attainder .... 9 Bills of . . 220 Attaint [proceeding in volving attainder] . 204 writ of. . . 214 Audit of public accounts 279 Bailiffs 78, 84 Ballot .... 123-4, 174-5 Bank of England ... 288 Bankruptcy (See also Debtors) . . 153, 167, 230 Baptists 39 Barons [men, the king's men or vassals] (See also Lords) ..... 8, 31 Baronets 26, 274 Battel (See Wager). Benevolences (See Loans). Bill of Rights 46, 57, 147, 167, 192, 222, 249, 280 Bills (See also Money Bills) 185, 189 Billeting . . . 26-7, 251 Bishops 5, 6, 13, 16, 76, 137, 234, 241 Boc-land 4 Body-guard ... 7, 24, 37 Boroughs 8, 75, 83-5, 88, 101, 109 Borsholder [surety-holder] (See Tithingman). Bribery of members . 165-6 ,, of voters 161, 167, 174 Bridges, repair of 82, 90, 95, 264 Brig-bot [bridge-tribute] , 264 Burgage-tenure [socage- tenure in an ancient borough] 159 Burh-bot [fortress-tribute] 264 Cabinet (See Council). Carucage [plough monpy] 268 Central Criminal Court . 228 Ceorls 4-6 Chancery, Court of 211,213,218, 230-1 Chancellor 154, 175, 202, 211, 231, 235-6 Charter, Forest . . . 19, 82 ,, Great 16-19, 80-2, 139, 202, 204, 207-8, 236, 268 Chartists 64 Chief Justiciary, chief jus- tice 201, 203-4, 223, 235 298 Index and Glossary Cinque Ports .... 8?> Circuits 79-80, 203-4, 230, 207 Cities [corporate towns, usually having a cathe- dral church] .... 83 ivil List . . 282-3, 290 Clarendon, constitutions of 15, 205 Clergy 6, 8, 15, 140, 271, 279 Comes (See Count). Commendams .... 221 Common Law .... 209 Common Pleas . 200, 202, 219 Commons, House of (See also Parliament) 159-175, 192, 194, 209, 226, 277, 280-1 Compurgation . . 199, 208 Concilium (See Council). Conscience, Courts of (See Small Debts). Constable [comes stabuli, stable or stall attendant] 175, 203, 212 high 83, 94, 106-7 ,, parish or petty 86, 94, 106-8 ., police . 103, 106-8 Contempt of Court 45, 229-30 Conventicles .... 30 Convocation . 191-2, 271, 279 Copyhold . . 12, 27, 106 Corn-laws 63 Coroners 82 Coronation . . 126, 129-30 oath .... 197 Corporation Act ... 30, 42 Corsned bread [execration bread] 199 Council, cabinet, and mi- nistry 179, 243-9,260-2 Great 137-9, 176, 200, 210, 235-6, 268 ,, ordinary and privy 32, 175-80, 182, 185, 195, 201-2, 210, 217, 227, 231, 235-9, 242-3, 263 ,, Judicial Committee of . . 180, 228, 231 of Peers . . . 143, 276 Council of Wales and of the North 216 Count [comes, attendant] 3, 13, 71, 137 County [Lat. comitatus, district presided over by a count ;J (See Shire). County courts (See also Shire-moot) . . . 104-6 Counties Palatine . 78-9, 94, 103-4, 188 courts of . 216, 230 Courts-leet 74, 78, 80, 94, 107 Crown, lands 236, 249, 266, 283-4, 290-1 pleas of the . . 30, 200 Cumulative voting . ... 123 Curia Regis (See also Council ; King's Bench) 176, 201-2, 234 Customs (See Duties). Custodes regni . . 235, 237 Gustos rotulorum ... 88 Danegeld [Dane-money] 84, 264-5 Divorce Court . . . 229-30 Debtors .... 44-5, 60-1 Declaration of Rights (See Bill of Rights). Delegates, Court of 214-5, 227 Demesne 11, 84 Denization [making a deni- zen, ex donatione regis] (See Aliens). Dissenters (See Religious disabilities). Disseise [deprive of the seisin or possession of land] 18, 22 Duke [Lat. dux, leader or general] 20 Durham (See also Counties Palatine) 163 Duties, customs 265, 284-5,291-2 excise 44, 250-1, 277, 284-5, 291-2 ,, newspaper . . 50, 64 paper . . 64, 284, 289 Ealdormen [aldermen, elders] 5, 7, 36, 70-1, 75, 234 Index and Glossary 299 Earls 13, 75, 234 Ecclesiastical, commissioners 241 ,, courts 76, 205, 214-5, 227, 228, 231 legislation 181, 186-7, 191-2 ,, supremacy . . 240-1 Education . 63, 121-4, 180 Elections, Parliamentary (See also Ballot) 59, 81, 161, 167, 225 Ely 79, 104 Eorls . . . . 4, 5, 75, 234 Escheat 9 Escuage or Scutage [shield- money] ... 27, 265, 267 Exchequer Court 201-2, 219 Chamber 210, 220 Excise (See Duties). Exclusion Bill . . 133, 244 Expenditure, public 282, 290 Fealty [fidelity] .... 8 Felony 9, 18 ,, appeal of ... 206 Feudalism . 3, 7-10, 20, 25-7 Fifteenths . . 267-70, 273-4 Five Mile Act .... 31 Folc-gemot, folk-moot (See also Shire-moot) ... 84 Folc-land [public land] 4, 234, 264-5 Forest laws and customs (See also Charter) 14-5, 19, 26, 76-7, 82 Franchise . 73, 79, 87, 106 Frankpledge (See Frithborh). Freemen 8 of boroughs 101, 170 Frithborh [peace-pledge, association for keeping the peace] . . .72, 74, 78 Fyrd [service in the field] 73, 264 Gaols 87, 95-6 Gemot or moot [assembly] 70 Gerefa or reeve [chief officer] 70 Gilds . 72 Great Charter (See Charter). Great Council (See Council). Habeas Corpus [a writ for bringing the body or per- son of an individual before the Court] .... 32-3 ,, suspension of Act 43, 191 Halimote or hallmoot . . 77 Headborough (See Tithing- man). Health, public . . . 115-8 1 learth-money .... 277 Heresy. ... 22, 27-8, 184 Heretoga [Germ, herzog, leader] 70 High Commission Court 215, 222 Highways, . . 91, 97, 114-5 Hlaford, hlaefdige . . 5, 71 Homage [acknowledging oneself the homo or vassal of another] 8 House tax . . 277, 286, 292 Hue and Cry 209 Hundred 2, 74, 85, 106, 209 Court of, ... 74, 78, 106 Huscarls [house-troops] (See Bodyguard). Husting [court or assembly held in a house, a bor- ough court] .... 84 Hustings 175 Hydage [tax on hydes of land] 265, 272 Hyde [120 acres, or per- haps 120 roodst30 acres)] 6, 264 Impeachment, 21,1, 226-7, 243, \/ 249 1 s Impressment (See Navy). Income Tax .... 286, 292 Indemnity Acts . . 39, 63 Indulgence, Declarations of 31, 189 Insolvency (See Bank- ruptcy ; Debtors). Jews, . Judges 12, 30, 39, 55, 61 164, 220-4, 231 300 Jury 205, 207-9, 212-4, 221-2, 224 Justices, in eyre [in itinere, itinerating] .... 203-4 ,, of the peace 86, 90, 108-9 Justicies, writ of ... 81 - King . . . . .2, 125-135 ,, suspending and dis- pensing powers of 186, 188, 192 judicial power of 197-8 ,, executive, power of 232, 234, 241-2, 251-6, 258-60 King's Bench, Court of '202, 204, 219 Knighthood .... 26, 275 Knight's service (See Ten- ant in chivalry). Labourers, statutes of . 21, 87 Jjand-tax 285 Legacy-duty .... 286 Letters, opening of (See Post-Office). Libel 50-54, 64 Licensing Act . . 35, 50-1 Life peerages 158 Livery [delivery of posses- sion of land] . . 9, 21, 27 Loans and benevolences 273-6 Local Government Board 118-20, 180 London . . . 103, 106, 120 Lord-Lieutenant . 36, 94, 264 Lords, House of ... 153-9 ,, jurisdiction of 210, 219- 20, 231 , , power of, as to money bills (See also Parliament) 278, 280, 289 Lotteries . . . 165-6, 287 Lordship or manor 6, 7, 10, 71-3, 77, 79, 106, 26(J Lunatic asylums , . 96, 109 Mregth [kindred] . , 70-2, 80 Magna Carta (See Charter, Great). Magnum concilium (See Council, Great). Male-tolte [sack-toll, on wool] 269 Manor (See Lordship). Mark 71 Marquess [warder of a march or frontier] , . 20 Marriage, 39, 61 Marshal [horse-servant] 203,212 Master of the Rolls 164, 231 Meetings, seditious . . 48-9 Mesne [intermediate] Pro- cess, arrest on [arrest by a writ after the commence- ment and before the end of a suit] 45 Metropolis . . 103, 106, 120 Michel -gemot [great or general assembly] . . 136 Military service 7, 16, 22, 24-5, 56-7 Militia 37, 59, 67-8, 256, 264 Reserve 67 Ministry (See Council, cabinet). Money Bills 192-3, 272, 278, 280, 289 Monopolies ... 33, 274-5 Moot, mote (See Gemot). Mortmain, statutes of . 16 Municipal government 8, 75, 83-5, 88, 101,109-11 Murder, compensation for (See Weregild) ; con- spiracy to 66 Mutiny Act 57-8, 147, 249, 251 National debt . . 279, 287-9 Naturalisation (See Aliens). Navy ... 37, 57, 68-9, 242 ,, impressment for 24, 57, 69 Newspapers . 34-5, 50, 64-5 Nisi Prius 205 Nonconformists (See Reli- gious Disabilities). Oaths of Allegiance and Supremacy, 29, 36, 38, 55, 61-3 Ordeal , , . . . 199, 208 Index and Glossary 301 Ouster-le-main [delivery of a ward's land out of the guardian's hanJs] . . 9-27 Parish 71-3 Parliament 136-175, 224-5, 229, 237, 242, 270 ,, Convention . . 144 Long ' . .35, 162, 276 ,, privilege of 142, 144-5, "-iW-STlSlt 153, 225-6 Paper (See Duties). Papists (See Religious Dis- abilities). Parties 244 Patents .... 33-4, 228 Peace, preservation of the 102 Peers (See also Lords) 13, 20, 40, 208 Petition of Right 26, 32, 217, 275 Petitions ... 46, 63-4, 184 Pillory .... 216, 220 Pleadings 209 Police (See Constable). Pone, writ of .... 100 Poor law . . .91, 97, 111-4 ~ Board . . 112, 119 Post-Office 36, 54, 65, 274, 277, 291 Poundage (See Tonnage). Prcemunientes clause . . 141 Prcemunire facias, 135. A writ under which penal- ties were inflicted by Acts of Edw. 3 and Ric. 2, for acting in y' obedience to the Court of Rome in defiance of the law or the king's authori ty . The like pen- alties were afterwards im- posed for other offences.] Pre-emption (See Purveyance). x-Press . . 23, 34-5, 49, 64-5 Primer Seisin ... 9, 27 Prince of Wales . . 14, 290 Printing (See Press). Prisage, prises . . 265, 269 Privilege (See Parliament). Probate Court . . . 229-30 Protection . . . 284, 291 Puisne [junior, inferior] . 214 Purveyance and Pre-emption 14. 22, 27, 277 Quakers 39, 61 Quia Emptores, statute of 183 Quorum, Justices of the 87 Rates (See Poor Law ; Tax- ation, local). Recognition 207 Record, Courts of . . 106 [So called from the enrolment of their proceedings on parchment.] Recordari, writ of ... 100 Recorders Ill Reeve (See Gerefa). Reform Acts . 49, 63, 168-173 Regarder 77 Regency . 235-6, 245, 256-8 Relief 9 Religious Disabilities 22, 27-31, 35-42. 61-3, 287 * Request Courts (See Small Debts) Reserve forces .... 67-9 Revenues, royal and public, 277, 280, 282, 291-3 Riding [tri thing or third] 74 Right (See Bill of Rights ; Petition of Right). Riot 41, 47, 161 Act 251 Roman Catholics (See Re- ligious Disabilities). Rome, See and Court of . 240 Royal assent . . . 191, 193 withholding of 147, 165 Saladin tithe 267 Sanitary \&vrs(See Health,Public). Scandalum Magnatum [scandal of nobles] . . 13 School Boards. . . . 122-4 Scot and lot [Scot or shot, tax ; lot, share. The pay- ment of an assessed share of a general impost] 84, 159 302 Index and Glossary Scutage (See Escuage). Seal, Great . . . 202, 237-8 Privy .... 237-8 Secretary of State, 240, 242, 261 Sedition 48-9 Seisin (See Disseise) . . 9 Sessions, petty and special 91, 99 ,, quarter . . 87, 99 Settlement, Acts of 134-5, 223 Settlement of pauper . . 93 Sewers . . . . 90, 118, 121 Sheriff [scir-gerefa, shire- reeve] 70-1, 75, 78, 80-1, 83, 85-6, 236 y. Ship-money . . . 265, 275-6 Shire [scir, division], or county (See also County Palatine) 70 Shire-moot [scir-gemot] or CountyCourt 70-1,74-6,80-1, 100, 104, 160, 204 Sign Manual, Royal . . 258 Signet, royal .... 238 Sithessocna [franchise of a gesith or comes] ... 73 Sithcundman [man of noble or gentle birth] ... 5 Six Acts .... 49, 50, 53 Slaves, slavery 2, 6, 24-5, 38, 60 Slave Trade ... 38, 47-8 Small Debts Courts 100, 106 Socage 10, 27 Stannaries .... 85, 231 i-Star Chamber 32, 34-5, 51, 212, 216-7, 222-3 Statute duty. . .91,97,115 Stockdale v. Hansard 152, 229 Subinfeudation ... 8, 10 Subsidies . 271-4, 276-7, 279 Succession-duty . . 286, 292 Supremacy (See Ecclesiastical ; Oath). Supreme Court of Judica- ture 230-2 Swein-mote [assembly of sweins or freemen] . . 77 Syxhyndman .... 5 Talliage . 265, 269, 272 Taxation .... 264, 293 local . 90, 95-6, 109 Telegraphs 291 Tenants in capite . 8, 13, 137 in chivalry 8-10,25-27 ,, in socage ... 10, 27 Test Act 31, 42 ,, Universities ... 63 Thegns . . . 5-6, 175, 199 Theows or thralls ... 6 Tithing 72 Tithing-man . . .72, 94, 108 Toleration Act (See also Religious Disabilities) 38 Tonnage and Poundage 265, 274-5 Torture 216 Tourn (See Courts-leet). Township 71-3 Trade, Board of . .180,195-6 Treason 10, 224 Trinoda necessitas [three- fold obligation] . . 82, 264 Tun-gemot [town-moot] . 71 Twelfhyndman .... 5 Twyhyndman .... 4 Uniformity, Acts of 29, 30, 192 Unitarians 39 Verderor [warder of the vert, i.e., sward and timber] .... 77, 81 Verge [compass of the Royal Court] .... 203 Vestries . . .95, 101-2, 120 Veto (See Royal Assent). Vice- comes (See Sheriff ; Viscount). Vill 71 Villeins, villenage 8, 11-2, 21, 24, 38, 78 Viscount [vice-comes] . . 20 Volunteers 24, 59, 60, 68-9, 264 Wager of battel ' 84, 206 of law. . . 199,208 Wapentake 74 [So called from the inhabi- tants touching each other's weapons at stated meetings in token of fidelity.] Index and Glossary 303 Ward-mote [assembly of a borough ward] ... 84 Wards and Liveries, Court of 21, 27 Warrants, general . 43-4, 51 ,, search . . 35, 51 Watchmen 103 Welshman [foreigner, man not of Teutonic birth] . 6 Weregild [murder-money] 4, 7, 84 Witan, witenagemot [as- sembly of the witan or wise men] 127-8, 136-7, 181, 198, 233-4, 263 Woodmote 77 Yeomanry . 59, 68, 264 PR/NTED BY NEILL AND COMPANY, EDINBURGH. \