1. in_ernet_dli_2015_163571_2015_163571_History-Of-The-English-Institutions

HISTORY OF THE ENGLISH INSTITUTIONS

PHILIP VERNON SMITH, M.A.

BARRISTER-AT-LAW; FELLOW OF KING'S COLLEGE, CAMBRIDGE

SECOND EDITION

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HISTORY OF THE ENGLISH INSTITUTIONS.

By Philip V. Smith, M.A., Barrister-at-Law; Fellow of King's College, Cambridge. Second Edition.

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HISTORY OF FRENCH LITERATURE. Adapted from the French of M. Demogeo.

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By A. M. Curteis, M.A., Assistant-Master of Sherborne School, late Fellow of Trinity College, Oxford.

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HISTORY OF THE FRENCH REVOLUTION.

By the Rev. J. Franck Bright, M.A., Fellow of University College, and Historical Lecturer in Balliol, New, and University Colleges, Oxford, late Master of the Modern School at Marlborough College.

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By Sir W. R. Anson, Bart., M.A., Fellow of All Souls' College, Oxford.

THE AGE OF PITT.

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By F. Willert, M.A., Fellow and Lecturer of Exeter College, Oxford.

THE SUPREMACY OF ATHENS.

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THE ROMAN REVOLUTION. From B.C. 133 to the Battle of Actium.

By H. F. Pelham, M.A., Fellow and Lecturer of Exeter College, Oxford.

HISTORY OF THE UNITED STATES.

By Sir George Young, Bart., late Fellow of Trinity College, Cambridge.

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HISTORY OF THE ENGLISH INSTITUTIONS

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PREFACE

TO THE FIRST EDITION.

THE various institutions of which the English Constitution, in its present complex form, is made up, are capable of being classified, and must, in order to be profitably studied, be classified under three or four leading divisions. From one point of view they are divisible into local and central; from another, into legislative, judicial, executive or administrative, and fiscal. Then, again, they may be classified as civil and ecclesiastical, or as social and political. And the leading divisions may be subdivided; as, for instance, the local into rural and municipal.

In the present volume the attention of the student will be directed to the origin of our local institutions on the one hand, and of our central government on the other, to the various phases of the development of both, and to the manner in which the latter gradually superseded and suppressed the former in their original shape, and then created a new local machinery to supply the want which their extinction had occasioned. He will also be called upon to observe the gradual limitation and separation into their

Preface

four great divisions of the at first undefined functions of government, which were originally exercised by the same individual or body of individuals, and still remain theoretically united in the person of the sovereign; but which, at least in our central system, it was found necessary, as the state of society became more complicated, to vest for all practical purposes in different hands. He will see how the judicial element, which was at first the most prominent, became in time subordinated to the legislature; how king, nobles, and commons, have from time to time exercised an exclusive, a preponderating, or a joint control over the latter, and over the executive or the administration of affairs; and how the fiscal department, which hardly existed in a primitive state of things, gradually rose to such importance, that it became the arena of some of the severest struggles for the personal rights and liberties of Englishmen and the due distribution of political power. The close connection which has always existed in this country between the Church and the State will render some notice of ecclesiastical affairs inevitable; but they will be treated of from a political point of view, and only so far as is necessary to illustrate the civil condition of the country.

For the purpose of a review of our institutions, such as that contemplated, it has been found convenient to divide its history into six great periods:—

History of the English Institutions

Preface

History of the English Institutions

viii

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among these persons and bodies and have been exercised by them.

The omission of all notice of the law of treason,

and of other matters more or less akin to the subject

of the work, has been due to a desire to compress the

volume within the smallest possible limits.

A glossary or explanation of some of the technical

words, the meaning of which does not appear from

the text, particularly of those occurring in reference

to the pre-Norman period, is given in the Index.

Words so explained are for the most part printed in

the text in italics. As regards the period just mentioned,

I have adopted the modern spelling of the

Teutonic proper names, and have avoided the use of

the term Anglo-Saxon, preferring the name of Eng-

lish, which our ancestors in that age themselves

employed. Whenever it has been necessary to dis-

tinguish the time before the Norman Conquest from

the succeeding periods of our history, it has been

done by designating the former as the pre-Norman,

Teutonic, or early English period.

It has frequently been found convenient to refer

to dates by the year of the current reign. In such

cases the chronological table at the end of the

volume will indicate the corresponding year of

the Christian era. When the name of a sovereign

has been used to mark a date, it has been in most

cases abbreviated. Acts of Parliament are referred

Preface

to in the usual manner by the year of the reign and

chapter, but the references to them are accom-

modated to the Revised Edition of the Statutes now

in course of publication by authority.

It is hardly necessary to state that the materials

for this volume have been in great part derived from

the larger works which treat of the English constitu-

tion.1 The present book will fail of one of its prin-

cipal objects if it does not lead the student to seek

further information for himself from those more

ample sources. To assist him in doing so, a list is

given of some of the standard books on the different

periods of our constitutional history. Should he

desire to extend his researches further, he will find

in these books references to other authorities from

which more detailed information can be obtained.

A list is also given of certain abbreviations in

common use, which it has been found convenient to

employ in the present volume.

1 For the statements in chaps. vi. and ix. respecting the king's

council and its share in the executive, the author is also much

indebted to Mr A. V. Dicey's Essay on the Privy Council, which

obtained the Arnold Prize at Oxford in 1860.

4 Stone Buildings, Lincoln's Inn,

September, 1873.

History of the English Institutions

Social and Local Development of the Constitution

CHAPTER I. ORIGIN OF THE ENGLISH INSTITUTIONS

Sources of our Institutions---Early Teutonic Institutions---Feudalism

CHAPTER II. THE PEOPLE

1. Classes of the People---Slavery Defence of the Realm. 2. Feudalism---Villenage Aliens Barons or Peers Purveyance and Pre-emption---Forest Laws Clergy Defence of the Realm Magna Carta---Charter of the Forest. 3. Decay of Feudalism---Villenage Liberty of the Subject Restraint on Religious Opinions Restriction on Printing Aliens---Defence of the Realm---Impressment for the Navy. 4. Villenage and Slavery---Extinction of Feudalism Billeting Abolition of Feudal Courts---Religious Penalties and Disabilities Liberty of the Subject---Monopolies and Patents Restriction on the Press Control over the Post Aliens Defence of the Realm---Army and Navy. 5. Slavery Religious Disabilities Maritime Law Roman Catholics Progress of Toleration Liberty of the Subject General Warrants Revenue Laws Political Rights---The Six Acts Liberty of the Press---Aliens Defence of the Realm Standing Army Milita. 6. Extension of Freedom Religious Disabilities---Political Agitation The Press Libels---Control over the Post---Aliens Reserve Forces Navy

Contents

CHAPTER III.

LOCAL GOVERNMENT.

1. Local Institutions—Early Local Divisions—Tithings—Townships—Hundreds—Courts-leet—Shire-moots—Ealdormen—Municipal Government—Encroachments of the Central Authority.

2. Effects of the Conquest—Counties Palatine—Franchises—Control of the Crown—Decline of the old Courts—The Charters—Coroners—Sheriffs—High Constables—Borough Charters—Special Jurisdictions.

3. Sheriffs—Parish Constables—Justices of the Peace—Custos Rotulorum—Power of the Central Authority—Municipal Government.

4. Local Rates—Justices of the Peace—Highways—Poor Law—Decline of old Institutions.

5. County Rates—Lunatic Asylums—Highways—Poor Law—Local Courts—Municipal Government—Vestries—Preservation of the Peace.

6. Local Courts—Constables—Justices of the Peace—Municipal Government—Poor Law—Highways—Public Health—Metropolis—Education

. 69-124

PART II.

Constituents of the Central Authority.

CHAPTER IV.

THE KING.

1. Origin of Royalty—Pre-Norman Kings.

2. Early Norman Kings.

3. Growth of the Hereditary Principle—Disposition of the Crown by Parliament.

4. Successors of Henry VIII—The Stuart Monarchs.

5. Acts of Settlement.

6. Present Succession

. . 125-135

CHAPTER V.

PARLIAMENT.

I. The Witenagemot, Great Council and Parliament.

1. Witenagemot.

2. Great Council—Representation—The Clergy.

3. Parliament—Meeting of Parliament—Privilege—Freedom of Debate.

4. Meeting of Parliament—Irregular Assemblies—Privilege—Punishment of Members—Publication of Debates.

5. Meeting of Parliament—Privilege—Privilege of Debate.

6. Presence of Strangers—Publication of Proceedings—Privilege

. . 136 153

II. The House of Lords.

3. Members—Number of Peers—Chancellor. 4. Status of Peers—Protests and Proxies. 5. Increase of Peerage—Creation of Peers. 6. Spiritual Peers—Life Peerages—Proxies—Number of Peers

153-159

III. The House of Commons.

3. Early Composition—Imperfect Representation. 4. Members—New Boroughs. 5. Members—Exclusion—Elections—Acts of Union—Representation. 6. Members—Exclusion—Representation

159-175

CHAPTER VI.

THE KING'S COUNCIL.

1. Pre-Norman Period. 2. Concilium Ordinarium. 3. Origin of Privy Council. 4. The Council under the Tudors and Stuarts. 5. The Council since the Revolution. 6. Committees of the Council

175-180

PART III.

Central Government.

CHAPTER VII.

LEGISLATION.

1. Pre-Norman Legislation. 2. Early Norman Legislation—Early Parliamentary Legislation. 3. Growth of Power of Parliament—Bills—Legislation by King in Council—Suspending and Dispensing Powers of the King—Ecclesiastical Legislation. 4. Limitation of the King's Powers—Passing of Bills—Ecclesiastical Legislation. 5. Bill of Rights—Abuse of Power by House of Commons—Royal Assent—Classification of Acts. 6. Power of House of Commons—Delegation of Legislative Functions — Simplified Form of Legislation

181-197

CHAPTER VIII.

JUDICATURE.

1. Judicial power of King—Procedure. 2. Jurisdiction of King —Severance of Common Law Courts—Jurisdiction of Chancellor, &c.—Justices in Eyre—Ecclesiastical Courts—Pro-

History of the English Institutions

CHAPTER IX. THE EXECUTIVE.

1. Power of the King--Control of the Witan. 2. Power of the King--Officers of State--Advice of the Great Council--Magna Carta. 3. Regencies--Control of Parliament--Power of Council--Privy Council--Growing Power of Commoners.

2. Ecclesiastical Supremacy--Power of the Crown in Civil Matters--Control of Parliament--Cabinet Council--Political Parties. 5. The Ministry--Control of Parliament--Increased Power of Executive--Personal Influence of the Sovereign--Regencies--Substitution for Royal Sign-Manual. 6. Personal Influence of the Sovereign--Ministers--Growth of Executive Power--Military Forces

CHAPTER X. TAXATION.

1. Early English Finance. 2. Feudal Sources of Revenue--Crown Lands--Imposition and Collection of Taxes--Magna Charta--Control of the Great Council. 3. Control of Parliament--Taxation of the Clergy--Relative power of the two Houses--Subsidies--Increase of Taxation--Loans and Benevolences. 4. Reigns of Elizabeth and James I.--Post-Office--Reign of Charles I.--Reign of Charles II.--Control of the Commons--Taxation of the Clergy--National Debt--Reign of James II. 5. Control of Commons--Public Revenue--Civil List--Crown Lands--Duties--Direct Taxation--Legacy Duty--Income Tax--Penal Taxation--Lotteries--National Debt. 6. House of Lords--Civil List--Public Expenditure--Sources of Revenue

Chronological Table

Index and Glossary

Hallam's Middle Ages (vol. 2)

Hallam

Freeman's Norman Conquest (vol. 1)

Freeman

Stubbs' Illustrations of English Constitutional History

Stubbs

Stubbs' Constitutional History of England (vol. 1)

Stubbs

Hallam's Middle Ages (vols. 2, 3)

Hallam

Stubbs' Illustrations of English Constitutional History

Stubbs

Stubbs' Constitutional History of England (vol. 1)

Stubbs

Hallam's Middle Ages (vol. 3)

Hallam

Hallam's Constitutional History of England (vol. 1)

Hallam

Hallam's Constitutional History of England (vols. 1, 3)

Hallam

Hallam's Constitutional History of England (vol. 3)

Hallam

May's Constitutional History of England, 3 vols.

May

Blackstone's Commentaries on the Laws of England

Blackstone

Stephen's Commentaries

Stephen

Broom and Hadley's Commentaries

Broom and Hadley

Statesman's Year Book

Martin

History of the English Institutions

LIST OF ABBREVIATIONS.

Acts of Parliament are thus referred to :--

St. 32 Hen. 8, c. 16, s. 13, or simply, 32 Hen. 8, c. 16, s. 13 = the statute of the 32nd year of Henry VIII.'s reign, chapter 16, section 13.

2 Ric. 2, st. 1, c. 4 =the 1st statute of the 2nd year of Richard II's reign, chapter 4.

1 Will. & Mar. sess. 2, c. 2 =chapter 2 of the second session of the reign of William and Mary.

Art. sup. cart =Articuli super Cartas.

8 B & S = Best & Smith's (Queen's Bench) Reports, vol. viii.

4 Burr. = Burrow's Reports (King's Bench), vol. iv.

11 Cl. & F. = Clark and Finnelly's House of Lords Reports, vol. xi.

J., following a name, =Judge; thus "Powell J." = Judge Powell.

[So C. J. = Chief Justice].

10 Q. B. = Queen's Bench Reports (by Adolphus & Ellis) vol. x.

Stat. Wynton. = Statute of Winchester.

1 W. Blackst. = Sir Wm. Blackstone's Reports, vol. i.

2. Wils. = Wilson's Reports, Part ii. (Common Pleas).

History of the English Institutions

PART I.

Social and Local Development of the Constitution.

CHAPTER I.

ORIGIN OF THE ENGLISH INSTITUTIONS.

Sources of our Institutions.----The political and social institutions of the people of England, which together make up what is called the Constitution, derive their origin mainly from two sources--(1) The laws and customs of the Teutonic tribes, who-in the time of the old Roman Empire occupied the central parts of Europe; and (2) The feudal system, which grew out of those laws and customs at a period subsequent to the settlement of the Angles and Saxons in Britain, and which was imparted into this country at the Norman Conquest. In Continental Europe the Teutonic tribes, when they overran and subjugated the countries previously under the sway of Rome, adopted in great part the institutions, civil and ecclesiastical, of the population among whom they settled as conquerors,--institutions which were established by the authority of Rome, and were based on her civil law. Hence we find that Roman law remains to this day the groundwork of all the legal systems of Western Europe, except the English. The Angles and Saxons, on the contrary, when

History of the English Institutions

Tacitus

Germania

Tacitus

Cæsar

Bell. Gall.

Cæsar

History of the English Institutions

Origin

History of the English Institutions

CHAPTER II.

THE PEOPLE.

1. Classes of the People.—The English settlers in Britain were from the first divided into the two great hereditary classes of Eorls (the principes of Tacitus) and Ceorls, both free, but the former of noble, the latter of ignoble birth. The oath of an eorl availed against that of six ceorls, and there was a corresponding difference in the amount of the weregild or compensation-money to be paid for the murder of a member of the two classes; which in the case of a ceorl was only 200 shillings (whence he was called a twyhyndeman), but in that of an eorl 1200 shillings. Besides these distinctions between the two classes, another was introduced, which had not existed when the people dwelt in the forests of Germany. Their private wealth had then consisted of household furniture, armour, and cattle, while their land was regarded as the common property of the tribe. But after settling upon the conquered soil of Britain, continually increasing encroachments were made on the folk-land, or land common to the whole people, by the conversion of portion after portion of it into boc-land—land held by private individuals, by book or charter. Landed wealth was at first the accompaniment of noble birth or personal merit, and when it became dissociated from these, it was gradually looked

1 For the periods of our history to which the sections marked 1-6 in the different chapters correspond, see the Preface.

2 The words have now, under the modernised forms of earl and churl, acquired totally different meanings.

The People

upon as in itself constituting a claim to peculiar political privileges. If an eorl was always presumed to have a considerably larger amount of landed wealth than a ceorl, the supposition was no doubt at first invariably in accordance with the fact. But when the presumption came to be notoriously violated, as in process of time it was inevitable that in particular cases it should be, it led to a division of the eorls or sitheundmen into twelf-hyndmen—those who held a due amount of land, and whose weregild was therefore retained at 1,200 shillings ; and syxhyndmen, men of gentle blood, but of small means, who were so called from the fact that their weregild was reduced to 600 shillings. At the same time, the purely hereditary basis of the English nobility was modified and ultimately supplanted by the practice which has been mentioned (p. 2) of personal attachment to a chieftain. The chieftain was called the hlâford3 or lordgiver, as the dispenser to his followers of rewards for their services; and they were denominated his thegns (in its Latin form thanes) or servants, with occasionally a prefix denoting their special branch of service; as in the case of the king's dish-thegn, bower-thegn, and horse-thegn, who, notwithstanding their menial titles, held high rank in the state. The twelfhyndmen, the highest grade of eorls, became converted into the king's thegns, who owned him as their immediate hlâford. The syxhyndmen, who had not property or position enough to serve the king directly, became the thegns of some ealdorman or bishop. It was at length established as a fixed principle, that a man must be commended, as the phrase was, to some lord, or he would be treated as an outlaw. As regards the ceorls, the lord to whom they were commended was determined

3 Hence the modern word lord, as lady is from the feminine hlæfdige.

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The People

2. Feudalism.

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his eldest son a knight, providing once a suitable marriage for his eldest daughter, and ransoming him if he was taken prisoner in war. Besides these legal contributions, a tyrannical lord not unfrequently extorted aids from his tenants on other occasions.

The relation between landlord and tenant, though at first merely life-long, soon came to be regarded as hereditary, the heir becoming entitled on the death of the tenant to occupy his land upon the same terms. But if the heir was under age (full age for this purpose being considered twenty-one in case of males, and sixteen in case of females) the lord became the guardian in chivalry, with a right to receive the profits of the land for his own benefit; and, moreover, with power to arrange a marriage for the ward, a refusal of which subjected the latter to the forfeiture of the estimated value of it to the lord. (On attaining full age, the ward obtained livery or ouster-le-main from the lord on paying a fine of half a year's profits of the land, and entered upon the full privileges and liabilities of the former tenant. If, on the other hand, the heir was of age at the time of the tenant's death, the lord received a relief or pecuniary fine upon his succeeding to the property; and the king was further entitled from the heirs of his tenants to primer seisin, or the first year's profits of the estate. And if a tenant died without heirs the land was liable to escheat or return to the lord. This might occur in two ways: first, if the kindred or blood of the tenant altogether failed; and, secondly, if the tenant committed one of a certain class of crimes called felonies, and was either tried, convicted, and sentenced for it, or fled the country, and was outlawed for it, for in both cases he was said to be attainted--that is, his blood was corrupted, and his heirs and kindred cut off, so that he could not transmit the inheritance to them. If the crime

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The People

Villenage.—All the land which either the king, as sovereign lord, or an inferior lord retained in his own hands, instead of granting to a vassal, was called his dominica terra or demesne land, the land of the lord. This land was cultivated by the lord's villeins—peasants who, holding no land by feudal tenure, resided on the lord's land on sufferance as his serfs. The origin of villenage and of the villein class is not very clear. It was, in some respects, a continuation of the old English slavery or thraldom, but it embraced a far larger proportion of the population than the older institution had ever included. In fact, after the Conquest, the majority of the old ceorl class were reduced into a state of villenage ; a degradation which was in part made easy by the previous existence of restrictions on the ceorls, such as inability to leave their lord without leave, similar to those to which the villeins were afterwards subjected. The depression of the villein class appears to have reached its lowest point in the reign of Hen. 2. A villein was then destitute of any property of his own, and was absolutely dependent upon the will of his lord, to whom he was compelled to perform unlimited services. A writ de nativitate probanda was issued for his recovery if he fled from his lord's service. The class was divided into villeins regardant, who had from time immemorial been attached to a certain manor, and villeins in gross, where such prescription had never existed, or had been broken through the sale of the villein by his lord or in some other way. From the time of Hen. 2 onwards the condition of the villeins in England was continually improving, and their number constantly decreasing. This was not owing to any legislation in their favour, but was the indirect effect of various causes, among which may be reckoned the subinfeudation and transfers and leases of land, which severed

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The People

Barons or Peers.—To return to the barons. Their feudal relation to the king gave them the right of attending his feudal court or council, and assisting him by their counsel in the transaction of its business. This right was sometimes recognised as extending to the inferior tenants in capite, but belonged in a special degree to the barons, who were all deemed pares, peers or equals, one of another. With the exception of a few distinguished individuals, to whom the Conqueror assigned the government of shires, with the old English or Danish title of Eorl (see ch. iii. § 1), or its Norman equivalent Count, they were all originally alike styled barons. About the reign of Hen. 2, the practice was begun of giving the title of earl as a mere mark of distinction, and in order to confer precedence, without attaching to it any administrative duties. The other ranks were not created till later. The bishops, and those abbots and priors who held from the king sufficient lands to constitute a barony, were reckoned among the barons as spiritual lords. Besides the political privileges enjoyed by the peers of attending the king's great council, and subsequently the upper house of Parliament, they likewise possessed certain peculiar privileges in case of being subjected to judicial proceedings; as, for instance, that they were entitled to be tried by members of their own order, and were exempt from arrest in civil cases. Moreover, the use of language derogatory to them was deemed a special offence, and designated as scandalum magnatum. With one exception noticed later, there is no instance of a peer having lost his dignity except by death or attainder. The hereditary nature of the peerage was doubtless in its origin connected with the hereditary descent and inalienability of the lands which formed the barony; and our nobility appears from the first to have differed from the continental nobility in the fact, that it descended to the eldest male representative,

History of the English Institutions

Purveyance and Pre-emption

Forest Laws

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The People

16 History of the English Institutions

of the king to a voice in the election of bishops, abbots,

and priors asserted. Lastly, it was declared that villeins

should not be ordained without the consent of the lord on

whose lands they were born. Most of the provisions of

the constitutions of Clarendon were speedily disregarded,

and the liberties of the Church were solemnly guaranteed

by the Great Charter, and reasserted in all the confirma-

tions of it. But many statutes, called Statutes of Mort-

main, were directed, in Edw. 1's reign, and subsequent

reigns, against the dedication of land to the Church, and

its consequent withdrawal from liability to contribute to

national purposes,—a practice whiêh naturally became

common when alienation of land was permitted, and the

hope was set before profligate landowners of atoning on

their deathbed for the sins of their past life, by bestowing

their possessions on the Church.

Defence of the Realm.—The old English national

force was much weakened during the confusion which

followed the Conquest, and an adequate feudal army was

not immediately provided in its place. But in 1085 the

alarm excited by the prospect of a fresh Danish invasion,

caused attention to be directed to the defenceless state of

the country, and no doubt gave a considerable impetus to

the completion of the feudal partition of land in the

country, with its military and other incidents, including

a liability to perform annually forty days' service when-

ever the king required it. A feudal force was thus called

into existence, upon which the Norman kings mainly

relied for the defence of the kingdom and the carrying on

of aggressive warfare in other countrics.

At the same time a levy under William Rufus, and

a muster to repel the Scottish invasion in 1173, proved

that the old pre-Norman organization had not become

wholly extinct; and subsequently when the ranks of the

History of the English Institutions

The People

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The People

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3. Peers.—During the period between Edw. I's reign and the Reformation the number of the barons was enormously reduced, first by the Scottish and French wars, but above all by the internecine wars of the Roses. During the same period distinctions were introduced among them by the introduction of three new titles. Edward III. (who was also the institutor of the order of the Garter), when on assuming the style of King of France he gave up that of Duke of Normandy, introduced the degree of duke into the English nobility by creating Edward the Black Prince Duke of Cornwall, and gave it the highest place in the peerage. His successor, Richard II., created a new rank of marquess, with precedence next in order to that of duke. In Hen. 6's reign the title viscount, originally the Norman-French designation of the sheriff, was first given, with a rank next to an earl, as an honorary distinction, independently of the office which had been up to that time attached to it. In Edw. 4's reign a noble, holding one of these new titles, George Neville, Duke of Bedford, was degraded from the peerage by Act of Parliament on account of his poverty, which rendered him unable to support his dignity. This proceeding has no parallel in our history either before or since.

Decay of Feudalism.—The details of the feudal land laws became, as time went on, more and more difficult to work, owing, among other causes, to the increased facilities for the alienation and transfer of land. In Hen. 8's reign the power of alienating land from the legal heir by will was at last conceded, though with some qualifications; but it had before that, time been practised in an underhand way, through the device of alienation during life to a stranger, who agreed to hold the land upon the trusts and for the purposes directed by the will,

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The People

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Liberty of the Subject.—Many statutes were passed about the time of Edw. 3, for the protection of the liberty of the subject, some of which were nothing more than detailed provisions for the due observance of the stipulations of the Great Charter. The right of purveyance was regulated so as to press as lightly as possible upon the persons still subject to it. It was repeatedly laid down that none should be imprisoned nor put out of his freehold but by the law of the land. And with regard to the military service required from all freemen, it was enacted that no man should be compelled to go out of his own shire, except in case of necessity or of sudden invasion, nor be liable to provide soldiers, unless bound to do so by his feudal tenure, or required by special authority of Parliament.

Restraint on Religious Opinions.—The first distinct instance of State intervention to repress the teaching 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 hœretico comburendo 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 imprisonment on persons favouring such teachers or keeping

5 As to this statute see below, ch. vii. § 3.

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Defence of the Realm

Impressment for the Navy

4. Villenage and Slavery

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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 kingdom, 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 I, 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 payment 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 obsolete, of requiring military tenants to receive knighthood or pay the composition instead.

This practice was renewed by Charles I, 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 Right (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

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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 Roman 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

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

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

would conform to the liturgy of the Church of England

(16 Cha. 2, c. 4; 22

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The Petition of Right (3 Cha. 1, c. 1)

The Great Charter

Act of Edw. 3

writ of habeas corpus

16 Cha. 1, c. 10, s. 6

31 Cha. 2, c. 2

The Habeas Corpus Act

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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 arms 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 following century. In 1638 an unconstitutional order in council 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 Restoration, 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 regiment, 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 Restoration, made

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5. Slavery.—No form of slavery had existed in England 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 an opinion expressed by Lord Chief Justice Holt, that “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 Revolution, 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 excommunicated 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 offices 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.

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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 Riots. Meanwhile the political disa-

bilities of the Roman 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 Romish religion prevailed. After that event Mr Pitt

and his colleagues were of opinion that Roman 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 Roman 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 Roman

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 Roman Catholic

soldiers. It was agreed among the members of Lord

Liverpool's administration, on taking office in 1812, that

Roman 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

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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 Revolution. 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 Revolution and the troubles on the continent was considered sufficient to warrant another temporary suspension 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 in Great Britain was in 1817; but it has since been more than once suspended in Ireland.

General Warrants.—Besides, however, the suspension of the Habeas Corpus Act, another mode of interference 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 Government, 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 first 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

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Money v. Leach

1 W. Blackst. 555

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Political Rights.—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 establishment 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 condemnation 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 personal 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 to 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 alterations 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, tending to destroy the constitution of Parliament, and to subvert the established government of the realm; and they

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Gordon, and the Association for the abolition of the slave trade in 1787. Upon the outbreak of the French Revolution, several democratic and revolutionary associations, called corresponding societies, were formed in England. Although the acquittal of Horne 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 recognised by the law), for deliberating on any public grievance, or on any matter or thing relating to any trade, manufacture, business or profession, or upon any matter in Church of State, except under certain stringent conditions. 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 provisions as to lecture rooms, were repeated in 1799, when all the corresponding societies were absolutely suppressed (39 Geo. 3, c. 79). Meanwhile voluntary associations 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 then 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

The Six Acts

Liberty of the Press

ENG. INST.

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Control over the Post

Aliens

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be received in either House of Parliament, unless it contained a clause expressly disabling him from occupying the prohibited posts. The object of this enactment was however in special cases occasionally superseded by a somewhat circuitous process. When it was desired that an individual should, upon his naturalisation, receive the prohibited rights, an Act was first passed permitting the introduction into Parliament of a Naturalisation Bill without the disabling clause, and the Bill was then introduced, which on becoming law gave the desired rights. In 1708 an Act was passed naturalising all foreigners who took the oaths of allegiance and abjuration, made the declaration against transubstantiation and invocation of saints, and received the Lord's supper in some Protestant congregation in England. This measure was, however, repealed three years later. But in the reigns of Geo. 2 and Geo. 3 many Acts were passed conferring naturalisation as a reward for services rendered to the State; for instance, as sailor in an English ship in time of war or in the whale fishery, and military service, or residence in America. In 1753 an Act was passed permitting the naturalisation of Jews without taking the sacrament as required by st. 7 Ja. 1, c. 2. It was, however, repealed by the very first Act of the following session, on the ground that occasion had been taken from it "to raise discontents, and to disgust the minds of many of his Majesty's subjects;" and it was not until 1825 that the requirement of st. 7 Ja. 1, c. 2, was finally abrogated, and the reception of the Lord's supper was declared unnecessary as a condition for naturalisation. Other disabilities on foreigners were imposed in the latter half of the 18th century. In 1774, it was enacted that no bill for the naturalisation of any person should be received by either House of Parliament, unless it contained a clause dis-

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Defence of the Realm

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Militiâ

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Control over the Post

Aliens

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CHAPTER III.

LOCAL GOVERNMENT.

1. Local Institutions.—The history of our local

government presents less continuity than that of any other

part of our constitution. In its early form our local system

exactly displayed the features which Tacitus describes as

presented by the old Teutonic institutions. But the

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Early Local Divisions.—The Angles, Jutes, and Saxons came over into Britain in several distinct and independent tribes, each of which was led by a chieftain, who in war, as military commander, bore the title of heretoga, and in time of peace performed the duties of ealdorman or chief civil magistrate. Every tribe was divided into markths, the members of which were united by ties of kindred, and, having fought and conquered together, took up their abode together on the land they had won. Moreover, according to the organization of the old Teutonic tribes, while the executive or administration of affairs was devolved upon the nobles, the whole mass of the people was entrusted with judicial and legislative powers. For the exercise of these powers every defined community, whether large or small, had its gemot, or assembly of its freemen; and its chief executive officer, its gerefa or reeve, was periodically elected by this assembly from among the nobler portion of the community. The existence, therefore, of the markth involved the meeting of a markth-gemot and the appointment of a markth-gerefa. The whole tribe, too, had its gemot, which, when the tribal territories became parts of a larger state under the name of scirs or shires (in Latin comitatus or counties1), or

1 Although the application of a Latin nomenclature to these old Teutonic institutions is of a later date, it is convenient to notice it when mention of them is first made.

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Tithings

Townships

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attend, with four other inhabitants, for the purpose of representing the township, at the hundred-gemots and scir-gemots.

Hundreds.—For besides forming part of the shire, the townships were early grouped together into hundreds, or, as they were called in the north, wapentakes; a further division into rapes, lathes, or trithings (ridings) being sometimes interposed between the hundreds and the shire. Every freeman was required to be enrolled in a hundred as well as in his tithing. Whatever may have been originally the case, the hundred soon lost all connection with the number from which its name is derived. The hundred-gemot was held once every month; and in addition to the town-reeve and four men from each township, was attended by the thegns of the hundred. It was convened and presided over by the hundred-gerefa or hundred-man, and took cognizance of all matters arising within the hundred.

Courts-leet.—Once a year the courts of the lordship and hundred were constituted into courts-leet for examining the frith-borhs, and ascertaining that all the freemen were duly enrolled in them. The sheriff and bishop attended in rotation the courts-leet of the different hundreds; and when they were present, the court was called the sheriffs' tourn. It was natural that all the important business of the lordships and hundreds should be postponed from the ordinary meetings of their courts until the holding of the courts-leet; and it seems that ultimately much of the judicial business which at first came before the sheriff and bishop in the county court was transacted by them in the tourn in the different hundreds.

Shire-moots.—Appeals from the ordinary hundred-gemots, and questions or causes which, as affecting more than one hundred, could not be brought before those

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Counties Palatine

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Custos Rotulorum.—Contemporaneously with the

office of justice of the peace was instituted that of custos

rotulorum, or keeper of the rolls and records of the county,

who was always a justice of the quorum as well, and

was deemed the highest civil officer of the county. Pre-

viously to 1545 he was appointed by the lord-chancellor,

and had the right to appoint the clerk of the peace; and

persons wholly unfit in point of learning and integrity had

held those offices without liability to be removed; a state

of things which caused miscarriages in the administration of

criminal justice, and frauds in the transfer of landed property

in the county. To remedy these evils, st. 37 Hen. 8, c. 1,

enacted that the custos rotulorum should, except in coun-

ties palatine, be appointed by the king's sign manual, and

hold office during the king's pleasure, and that he should

appoint the clerk of the peace to continue during his own

tenure of office or during good behaviour; and empowered

either officer to perform his functions by a competent

deputy.

Power of the Central Authority.—The effect of

the new county institutions which have been noticed, as

dating from Edw. 3's reign, was rather to bring under the

king's control, than to diminish, the paramount influence

of the nobility and great landowners in local affairs. The

independent franchises of the lords were, where they

existed, always reserved to them by the statutes which gave

authority to the justices of the peace. And Edward

III. even established a new local sovereignty by making

Lancashire a county palatine under the Duke of Lancaster;

but from the time that Henry IV. ascended the throne,

the duchy was always held with the crown, and was per-

manently united to it on the accession of Henry VII.

Municipal Government.—The encroachment of in-

dividuals upon popular rights, which had already taken

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4. Local Rates.—About

the time of the Reformation, a new and important feature was introduced into local administration. This was the imposition of an organised local taxation in the shape of rates. The county rate appears in the mode prescribed in 1530 for the repair of bridges. These had previously to that time been repairable by the hundreds or parishes; but the repairs were now thrown upon the county at large, and the justices were empowered to convene the constables or two of the inhabitants of every town and parish in the shire, and with their assent to tax all the inhabitants for the repair of the bridges. Two collectors of the tax were to be appointed in each hundred, and two surveyors of bridges in each shire. A similar provision was at the same time made for the repair of bridges in cities and towns corporate (22 Hen. 8, c. 5). In the following year the imposition of another local rate was authorised. St. 23 Hen. 8, c. 5, empowered the lord-chancellor, lord-treasurer, and the two chief-justices to issue commissions in the king’s name to commissioners of sewers in certain districts which, owing to the encroachments of the sea or the want of proper drainage of the land and outlets for the river water, were suffering from inundations. The commissioners were entrusted with ample powers for remedying the evil, and were authorised to levy rates on the owners of land in the district for which they were appointed, in order to meet the expenses incurred by them in the discharge of their duty.

Justices of the Peace.—Besides

the new powers given to the justices in reference to the county rates, a further important step was taken in the reign of Hen. 8 towards consolidating their authority. In 1542 an Act was passed which, after reciting that certain laws as to vagabonds, gamesters, victuallers, innkeepers, and others,

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91

had up to that time been very negligently enforced,

required the justices of counties to divide themselves into

districts with at least two justices to each district. The

justices of each district or division were to hold a sessions

every quarter in addition to the quarter sessions, and were

authorised at such divisional sessions to try offences against

the above-mentioned laws, and also to correct the lists of

jurymen (33 Hen. 8, c. 10). Such was the origin of

petty sessions, the jurisdiction of which was thencefor-

ward continually increased by new statutes giving addi-

tional powers to divisional justices either at their ordinary

sessions, or at special sessions to be held by them for the

purpose specified in the particular Act which gave the

authority.

Highways.—The measure for the repair of bridges was

followed not long afterwards by another for the repair of

highways. But the liability to this latter duty was con-

tinued in the parishes, and its due performance was pro-

vided for, not by taxation, but by obligatory labour. By

st. 2 & 3 Ph. & Mar. c. 8, two inhabitants were annually to

be appointed surveyors of highways in every parish at a

meeting convened by the constables and church-wardens;

who were also to appoint four days between Easter and Mid-

summer, when the parishioners, according to their means,

were either to furnish horses and carts, with labourers

and implements, or were themselves to work on the road

with their own tools.

This requirement was called statute duty, and its neglect was to be punished by the stewards

of the courts-leet by fines, which were enforceable by the

bailiff and high constable of the hundred.

Poor Law.—But the importance of the measures as

to bridges and highways is insignificant compared with

that of another element of our local organisation which

dates from the same period. Upon the dissolution of the

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Highways.—The liability to the repair of highways

was still retained in the separate parishes, but by an Act

of 1773 (13 Geo. 3, c. 78) the justices, at special petty

sessions held annually for the purpose, were required to

appoint for each parish a surveyor of highways for the

ensuing twelve months out of a list of at least ten persons

drawn up by the constable, churchwardens, and rate-

payers of the parish, and submitted to the special sessions

for the purpose. Power was given to the justices to con-

trol the conduct of the surveyor, and punish him for

neglect; and also to enforce the performance of the statute

duty, and the proper repair of the highways, and to try

and punish offences committed upon them. Besides these

powers in reference to parish highways, an Act of the same

year, consolidating the laws as to turnpike roads, gave

to the justices in quarter sessions and petty sessions----

and as to some matters, to a single justice—jurisdiction

over various points connected with the management of

that class of highways.

Poor Law.—In the period between the Revolution

and the Reform Act of 1832, considerable alterations and

amplifications took place in the machinery of the poor

law. The institution of workhouses and unions dates

from 1723, when the churchwardens and overseers of

parishes were empowered, with the consent of the vestry,

to purchase or hire houses, or contract with any person

for the lodging and employment of the poor. Three small

parishes might unite in establishing a single poorhouse;

and persons who declined to submit to the lodging provided

for them were not to be entitled to any relief (9 Geo. 1,

c. 7). Sixty years later, Mr Davies Gilbert's Act (22 Geo.

3, c. 83) introduced the office of guardians in parishes

where the adoption of the Act was agreed upon by two-

thirds in number and value of the owners or occupiers

HISTORICAL HANDBOOKS

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6. Local Courts

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106 History of the English Institutions

county courts and statutory courts of request as to small

debts was to cease. But with regard to courts in respect

of which there were private rights, the Act of 1846

merely empowered any lord of a hundred, honour,

manor, or liberty, who had any court in right thereof

in which debts or demands might be recovered, to sur-

render to the Crown the right of holding such court

in respect of such debts or demands; and from and

after the surrender the court was to be discontinued, and

the right of holding it to cease, so far as related to the re-

covery of debts and demands. In 1867, however, it was

enacted that no action or suit which could be brought in

any county court should be maintainable in any hundred

or other inferior court, not being a court of record; and

provision was made for the compensation of persons

entitled to any franchise or office in respect of these courts,

who might be losers by the abolition of their jurisdiction.

Manor courts are still held once or twice in the year, but

only as customary courts for controlling and registering

dealings with copyhold land. And a shadow of the old

constitution of the court is maintained by the requirement

that the homage or freeholders of the manor shall be

represented at its sittings by at least two individuals.

The machinery of the new county courts was not at first

extended to the city of London, but in 1852 a city of

London court for the recovery of debts, damages, and de-

mands not exceeding £50, was constituted in connection

with the Sheriff's court in London, with much the same

powers, regulations, and mode of procedure as the county

courts.

Constables.—The old offices of high and parish

constable have also considerably dwindled in importance.

In fact the latter, with the attendant pre-Norman office of

head-borough or tithing-man, has almost become extinct.

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Local Government

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Local Government

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Local Government

Poor Law

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Local Government

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Local Government

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Local Government

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Local Government

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Local Government

Education

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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 contributions, 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 observances and instructions should be confined to the beginning or end of school, and no child should be required to attend any religious observance or instruction objected to by the parents;

and it at the same time discontinued 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 conditional 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.

History of the English Institutions

PART II.

Constituents of the Central Authority.

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 individual 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 Conquest," i. 82. Others, however, like Carlyle (see "Heroes and Hero-Worship," Lect. i., vi.), connect the word, the German form of which is könig, with "can" (Germ. können), and understand it to mean the cunning or able man.

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The King

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2. Early Norman Kings.

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The King

few weeks later, practically revoked that choice by sending 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 Rufus, 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 Lanfranc, who possessed and exercised the power of performing 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 afterwards 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, relied4; and John's right to the throne depended upon 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 considered to carry, we may adduce, on the one hand, Henry I.'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 unresisted accession of the latter upon Stephen's death.

The importance attached to the solemn act of coronation itself, with the rite of anointing which formed part of it, is indicated (i.) by the desire of Stephen that his son

4 Henry styles himself, "Ego nutu Dei a clero et a populo Angliæ electus." And Stephen, "Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus."

ENG. INST.

I

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Growth of the Hereditary Principle

The King

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 death of Edward III., of his grandson Richard, as representing 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 effect that the inheritance of the crown should remain in him and the heirs of his body issuing. This arrangement was altered by a Parliament in 1460, 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.

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The King

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5. Acts of Settlement

The King

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.

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 assembly, called the Michelgemot 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 Witenagemot; 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 occasional 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 belonged to their whole class. It cannot, however, be supposed 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

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 Witenagemot was transformed into a purely feudal assembly, consisting 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 episcopal 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 tenants 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-

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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 1264, 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 the

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.

In 1213

the deans attended the council as they had done in Hen.

2's reign.

The practice of proctors or deputies from the

inferior clergy attending Parliament began in Hen. 3's

reign.

There is an undoubted instance of it in 1255,

and it apparently took place on a few occasions previously.

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Parliament

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.

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

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Parliament

Commons,

the

judges

gave

an

opinion

in

his

favour,

he

was

kept

in

prison,

and

the

Commons

at

the

king's

command

proceeded

to

choose

a

new

speaker.

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

dissolved

on

the

death

of

the

sovereign.

And

the

frequency

of

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

expirations

of

three

years

from

the

first

day

of

its

session,

or,

if

then

sitting,

at

its

first

subsequent

adjournment

or

prorogation,

and

a

new

Parliament

was

to

be

elected

three

years

from

the

dissolution

of

the

last.

And

Parliament

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

experiment

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

the

moneys

in

the

hands

of

the

council.

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Parliament

time the only recognised exceptions to the privilege possessed by members of freedom from arrest. But upon the publication by Wilkes, member for Aylesbury, of the North Briton, No. 45, in 1763, containing a virulent attack upon the king's speech on the prorogation of Parliament,

the House of Commons resolved " that privilege of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of law in the speedy and effectual prosecution of so heinous and dangerous an offence." And the Lords agreed to this resolution, although seventeen peers protested against the surrender of the privilege of Parliament " to serve a particular purpose ex post facto, et pendente lite in the courts below."

Down to the year 1795 members of both Houses enjoyed the privilege of sending and receiving post-free an unlimited number of letters. This privilege, objectionable in itself, became the subject of great abuse, being fraudulently employed by persons connected with members to secure the gratuitous transmission of their own letters. It was therefore subjected to restrictions by Mr Pitt, and was wholly abolished in 1839.

Privilege of Debate.—The privilege of freedom of debate in Parliament was reasserted after the Revolution in the Bill of Rights, which laid down " that the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament." Though no attempt was afterwards made by the Crown to punish members for words spoken during a debate by imprisonment or legal proceedings, yet, as will be mentioned later (see ch. ix.), instances occurred in which George III. visited conduct in Parliament with substantial marks of his displeasure. The exercise of freedom of debate was assisted by the right, which both

150 History of the English Institutions

Houses had possessed from very ancient times, of excluding strangers from their debates. The enforcement of

this right, which had previously been very strictly maintained, was gradually relaxed after the Revolution, though

it was still occasionally exercised.

Notwithstanding the endeavours of both Houses during the first half of the seventeenth century, by frequent resolutions and punishment of offenders, to restrain

news-letter writers from giving any report of their proceedings, the appearance of regular though imperfect

accounts of the principal debates in one or two of

the magazines of the year began at the accession of

George I. The initials only of the speakers were given,

and the publication was withheld till after the session. 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

Lilliput or of the Political Club. The last attempt on

the part of the House of Commons to punish the publication of its debates was in 1771, and led to a conflict

between that House and the Lord Mayor and aldermen

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

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Parliament

Privilege.—In 1812 bankruptcy was made a disqualification 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 of privilege of Parliament as regarded bankruptcy in England, and similar provisions as to Ireland were inserted in the Irish Bankruptcy Act of 1872.

II. The House of Lords.

3. Members.—After the constitution of a new House to represent the interests of the commons, the Upper House, the lineal successor of the Witenagemot and Great Council, became in process of time confined to the nobility 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 without 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 bannerets were often summoned to the Upper House. In the early part of Ric. 2’s reign cases occur of peers being created by Parliament. And the first instance of their creation by letters patent was in 10 Ric. 2.

Number of Peers.—In the Parliament of 1454, the

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4. Status of Peers.

Parliament

155

maintained at a very low figure, was considerably augmented 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 I. was 82. That king created 62 new peerages, and Charles I., 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, Roman 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 restriction, the Duke of Buckingham had in one Parliament held 14.

5. Increase of Peerage.—After the Revolution the augmentation of the peerage continued with greater rapidity than before. In 1711, Anne created 12 in one batch for the purpose of obtaining a majority in the House in favour of the Crown. The Act of Union with Scotland in 1706 added to the house 16 representative peers for the latter kingdom, elected at the commencement of every Parlia-

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Parliament

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 attended the passing of the Reform Bill of 1832, proved the importance of the unlimited prerogative of the Crown to create new peerages. Sixteen new members were thus actually 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 consequences 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 attempts 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 Manchester 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

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Life Peerages

Proxies

Number of Peers

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Parliament

III. The House of Commons.

3. Early Composition.—The regular and unvarying attendance in Parliament of representatives from both counties and boroughs dates from 1295. In that year the number of knights who sat was 74, and the number of burgesses 200. The knights seem to have been originally 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 he 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 counties and boroughs were in Edw. 1's reign often different, it 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, 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

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Parliament

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,

c.

45).

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.

2's

reign,

and

was

largely

resorted

to

by

the

ministers

of

Will.

It

was

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

1696,

and,

after

failing

reign,

which

imposed

as

a

qualification

of

membership

the

receipt

of

an

annual

income

from

land

to

the

amount

of

£300

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

Robert

Walpole,

and

was

continued

by

his

successors.

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

value.

It

is

said

that

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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 of thirteen members.

Acts of Union.—The Act of Union with Scotland

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 1800 (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 Revolution 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

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 1831. 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 Reform Bill passed both Houses,

and became law on the 7th June 1832.

By its provisions 56 rotten boroughs, with less than

2000 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

History of the English Institutions

6. Members

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Parliament

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Parliament

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The Reform Act of 1832 has been followed at intervals by measures for simplifying and improving the registration 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 kingdom to exercise the franchise.

Many measures have been taken during the last forty years with a view to the suppression of bribery at Parliamentary 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 1868 surrendered in favour of the courts of law its long-cherished privilege of exclusive jurisdiction in cases of controverted elections.

The present mode of questioning the validity of an election 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.

History of the English Institutions

The King's Council

CHAPTER VI.

THE KING'S COUNCIL.

History of the English Institutions

History of the English Institutions

The King's Council

3. Origin of Privy Council

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4. The Council under the Tudors and Stuarts.

History of the English Institutions

The King's Council

History of the English Institutions

History of the English Institutions

PART III.

Central Government.

CHAPTER VII.

LEGISLATION.

1. Pre-Norman Legislation.—In the English constitution 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. Ælfred, 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 legislation 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.

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. 1's 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 realm1 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.

History of the English Institutions

Legislation

History of the English Institutions

Legislation

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 afterwards 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 proclamations issued on the authority of the king and his council alone, independently of Parliament, was still continued. The practice was expressly sanctioned, under certain limitations, 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 proclamations, 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 corporate the loss of inheritance, possessions, offices, liberties, franchises, or goods, nor the punishment of death, except

History of the English Institutions

Suspending and Dispensing Powers of the King

Ecclesiastical Legislation

Legislation

4. Limitation of the King's Powers.

2 "Super arduis et urgentibus negotiis . . . statum et defensionem regni nostri Angliæ et Ecclesiæ Anglicanæ contingentibus"

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Legislation

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Legislation

192 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 progued 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 Vict. c. 35.)

5. Bill of Rights.—The powers of the Crown as to interference with legislation were finally determined by the Bill of Rights (1 Will. & Mar., sess. 2, c. 2), which laid down as follows :—

" That the pretended power of suspending of laws or the execution 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

3 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.

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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 successful, the Commons happily did not persist in the practice.

Royal Assent.—The direct share of the king in the making of laws, none of which can become binding without his consent, was of course retained unaltered at the Revolution. 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 intervention 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 his ministers to abstain from bringing it forward themselves, and to procure its defeat in Parliament if brought forward

ENG. INST.

N

History of the English Institutions

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 commencement, if no other date of commencement was specified 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 personal 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 Roman numbers.

6. Power of House of Commons.—The course of legislation since the Reform Act of 1832 has been marked by two principal features. The first of these is the preponderating 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 legislation on all important public matters. The function of the Upper House, as regards these matters, has been almost

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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

History of the English Institutions

Legislation

CHAPTER VIII.

JUDICATURE.

1. Judicial power of King.—With our present developed ideas on the subject of constitutional government, 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 legislator, 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;

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.

History of the English Institutions

2. Jurisdiction of King.

History of the English Institutions

Judicature

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 been 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

History of the English Institutions

History of the English Institutions

Judicature

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 be given. The trials of these ordinary civil causes were called nisi prius trials, from the fact that the juries to be engaged upon them were to appear before the justices of the Bench at the central court on a stated day, nisi prius justiciarii itinerantes 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 ecclesiastical 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 the clergy 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 Rome, and led in 1164 to the passing of the Constitutions of Clarendon, which established the amenability of the clergy to the temporal courts in civil and criminal cases, and prohibited appeals to Rome. But the excessive severity of the punishments at this time inflicted 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 remained but for a short time in force, and the clerical courts speedily succeeded in recovering their former jurisdiction.

Procedure.—But while such were the changes made

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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. introduced 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 these 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 presentment 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

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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 questionibus juris respondent judices, de quæstionibus 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. INST.

0

History of the English Institutions

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 independence 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 commandments 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 Parliament.

But the Upper House, the lineal successor, so to speak, of the Great Council, and through it of the Wittenagemot, 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-

History of the English Institutions

Judicature

History of the English Institutions

Judicature

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

theoretical

development.

As

early

as

Edw.

3's

reign

the

jury

had

begun

to

abandon

their

joint

character

of

being

witnesses

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

afforciug

jurors

(see

p.

from

those

originally

chosen.

The

former

thus

assumed

the

position

of

witnesses.

A

full

account

of

the

system

as

it

existed

in

the

reign

of

Hen.

6

is

given

by

Lord

Chancellor

Fortescue,

in

his

work,

"De

Laudibus

Legum

Angliæ"

(chaps.

25-32).

It

appears

that

special

juries

were

at

that

time

summoned

for

the

trial

of

each

particular

cause;

for,

though

witnesses

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

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4. Ecclesiastical Courts

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Star Chamber

Court of the Chancellor and Council of the Duchy of Lancaster

Exchequer Court of the County Palatine of Chester

Court of the Council of Wales

Court of the Council of the North

Sir Thomas Wentworth

Charles I.

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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 seventeenth

centuries ; and his right to interfere with actions in pro-

gress in the common law courts, and even with judge-

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

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Parliament

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House of Lords

Judges

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221

courts, there were in the ordinary courts of justice previously 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 demise of the Crown, and only resumed them if reinstated by the new king, but also, at any rate during the reigns of the Stuarts, were almost invariably appointed to hold office durante bene placito, "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. 1's 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 therefore proceeded in the cause notwithstanding the letter. Upon this they were all summoned to the council chamber, 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 consequence, 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

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Judicature

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6. Privy Council

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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 imprisonment, 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

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 progress, 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 circuit 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 November 1875.

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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 Stannaries Court (see p. 85), and also that of the Judicial Committee 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 transferred 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.

History of the English Institutions

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

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The Executive

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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 "Rex 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 magistrum ; et ideo, si rex fuerit sine freno, i. e., sine lege, debent ei frenum ponere, nisi ipsimet fuerint cum rege sine fræno."—Bracton lib. 2, c. 16, § 3.

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The Executive

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The Executive

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The Executive

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4. Ecclesiastical Supremacy

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 use 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 officio 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

ENG. INST.

Q

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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's 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 Parliament to obtain the control of the militia was the immediate 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 military 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

Cabinet Council

2 Clifford, Ashley, Buckingham, Arlington, and Lauderdale.

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Political Parties

The Ministry

The Executive

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The Executive

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The Executive

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253

accepting as premier the Marquis of Rockingham, whom he had a short time before removed from the lord-lieutenancy 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 appointments.

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 of 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 Parliament, 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 Parliament, and subversive of the constitution."

George III., in fact, keenly watched the debates in Parliament, commented on the silence of those whom he had expected to speak, and marked his displeasure at the conduct of members in a debate by his behaviour to them at his drawing-rooms and levées, and in the case of one or two officers, even by passing them over in the order of promotion in the army.

George III.'s personal influence in the management of public affairs attained its climax during Lord North's administration (1770-1782).

That minister suffered himself to be directed, both in his general policy and

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The Executive

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The Executive

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6. Personal Influence of the Sovereign

The Executive

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The Executive

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263

History of the English Institutions

CHAPTER X. TAXATION.

1. Early English Finance.

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Taxation

2. Feudal Sources of Revenue

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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 large, and was subject to continual increase through forfeitures 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 arbitrarily 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 necessitated his appeal for pecuniary assistance to the people—a result of incalculable 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 of 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 consulted their council of barons on the imposition of any extraordinary aid or tax ; but the reference to them was

Taxation

little more than a form, for no instance is recorded in which the demand of the king was refused, or even questioned. 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 of 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 supplemented 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,

History of the English Institutions

Taxation

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 the first 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

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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. Richard 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 Ric. 3's reign, but were

renewed by Henry VIII., 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

History of the English Institutions

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 compulsory 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

money from private persons. Moreover, the impost called

•of Eliz., 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

them to be levied as if they had been voted. The

disastrous expedition to the Isle of Rhé 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 Right, 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 unprecedentedly 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

in every department of trade, and were thrown into the

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Taxation

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Taxation

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 Chancellor 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 liability 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 Cha. 2 is also remarkable, 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 was 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 importance 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 instead 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 of 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.

History of the English Institutions

Reign of James II.—James II., on coming to the throne, issued a 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 Rights 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 Crown by pretence of prerogative without grant of Parliament for longer time, or in other manner than the same is or shall be granted, is illegal." Not a single attempt has since been made to infringe this principle, 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 1763 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

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Public Revenue

Civil List

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Taxation

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 Revolution 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 prescribed the limits as to length of time, and other conditions, 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 were 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. Provision 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

History of the English Institutions

History of the English Institutions

Taxation

History of the English Institutions

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

ENG. INST.

T

History of the English Institutions

Civil List

Public Expenditure

History of the English Institutions

Taxation.

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 Robert Peel in 1847.

And in 1849 the machinery for collecting the excise and stamp duties was simplified by the amalgamation of the Commissioners of Excise and Commissioners of Stamps and Taxes into one Board of Commissioners of Inland Revenue.

Such has been the enormous development of our commerce that the few articles—such as wines, spirits, tobacco, tea, and coffee—upon the importation 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 £27,000,000,1 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 5½ millions, instead of under 2½ millions, notwithstanding that in 1870 the rates of postage were further lowered.

Attached to the Post Office, 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 in 1869 (see p. 292).

History of the English Institutions

Taxation

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 3½ millions more than its amount had been estimated at in the budget of 1873; and that, although a considerable reduction in taxation was made in consequence, it fell very little short of 75 millions in 1874–5.

History of the English Institutions

CHRONOLOGICAL TABLE

SHOWING AT INTERVALS THE DATES OF THE SESSIONS OF PARLIAMENT ACCORDING TO THE CORRESPONDING YEARS OF THE CHRISTIAN ERA, AND OF THE REIGNS OF THE ENGLISH SOVEREIGNS, AND THE DATES OF THE COMMENCEMENT OF THE REIGNS FROM A.D. 1216.

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.

1377, 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, . . . 23 Eliz.

1592-3, . . . 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. 1.

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.

1688 (9),* Feb. 13, { WILLIAM & MARY.

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, Aug. 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.)

Chronological Table

A.D.

1739-30

3 Geo. 2.

A.D.

1825

6 Geo. 4.

1739-40

13 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 Vict.

1801

41 Geo. 3.

1850

13 & 14 Vict.

1810

50 Geo. 3.

1860

23 & 24 Vict.

1820, Jan. 29

GEORGE IV

1870

33 & 34 Vict.

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

Ashby v. White

225

Assize [trial]

204

" grand

207

[The word also means a law, and an assessment]

Attainder

9

" Bills of

220

Attaint [proceeding involving 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 money]

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, 32

" Great

16-19, 80-2, 139, 202, 204, 207-8, 236, 268

Chartists

64

Chief Justiciary, chief justice

201, 203-4, 223, 235

Cinque Ports

85

Circuits

79-80, 203-4, 230, 267

Cities [corporate towns, usually having a cathedral church]

83

Civil 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 [exceration bread]

199

Council, cabinct, and ministry

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, 268

Judicial Committee of

180, 228, 231

of Peers

143, 276

Council of Wales and of the North

216

Count [comcs, attendant]

3, 13, 71, 137

County [Lat. comitatus, district presided over by a count] (See Shire)

County courts (See also Shire-moot)

104-6

Counties Palatine

78-9, 94

courts of

103-4, 188

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

Custos rotulorum

88

Danegeld[Danc-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 denizen, 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

Ealdormon [aldormen, elders]

5, 7, 36, 70-1, 75, 234

History of the English Institutions

Earls

Ecclesiastical, commissioners

courts

legislation

supremacy

Education

Elections, Parliamentary (See also Ballot)

Ely

Eorls

Escheat

Escuage or Scutage [shield-money]

Exchequer Court

Chamber

Execise (See Duties)

Exclusion Bill

Expenditure, public

Fealty [fidelity]

Felony

appeal of

Feudalism

Fifteenths

Five Mile Act

Fole-gemot, folk-moot (See also Shire-moot)

Fole-land [public land]

Forest laws and customs (See also Charter)

Franchise

Frankpledge (See Frithborh)

Freemen

of boroughs

Frithborh [peace-pledge, association for keeping the peace]

Fyrd [service in the field]

Gaols

Gemot or moot [assembly]

Gerefa or reeve [chief officer]

Gilds

Great Charter (See Charter)

Great Council (See Council)

Habeas Corpus [a writ for bringing the body or person of an individual before the Court]

suspension of Act

Halimote or hallmoot

Headborough (See Tithing-man)

Health, public

Hearth-money

Heresy

Heretoga [Germ. herzog, leader]

High Commission Court

Highways

Hlaford, hlaefdige

Homage [acknowledging oneself the homo or vassal of another]

House tax

Hue and Cry

Hundred

Court of

Huscarls [house-troops] (See Bodyguard)

Husting [court or assembly held in a house, a borough court]

Hustings

Hydage [tax on hydes of land]

Hyde [120 acres, or perhaps 120 roods (30 acres)]

Impeachment

Impressment (See Navy)

Income Tax

Indemnity Acts

Indulgence, Declarations of

Insolvency (See Bankruptcy; Debtors)

Jews

Judges

Jury

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 dispensing 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 Tenant in chivalry).

Labourers, statutes of

21, 87

Land-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 possession of land]

9, 21, 27

Loans and benevolences

273-6

Local Government Board

118-20, 130

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, 266

Lunatic asylums

96, 109

Maegth [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] Process, arrest on [arrest by writ after the commencement 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) ; conspiracy to

66

Mutiny Act

57-8, 147, 219, 251

National debt

279, 287-9

Naturalisation (See Alien).

Navy

37, 57, 68-9, 242

impressment for

24, 57, 69

Newspapers

34-5, 50, 64-5

Nisi Prius

205

Nonconformists (See Religious Disabilities).

Oaths of Allegiance and Supremacy

29, 36, 38, 55, 61-3

Ordeal

199, 208

Ouster-le-main

Parish

71-3

Parliament

136-175, 224-5, 229, 237, 242, 270

Convention

144

Long

35, 162, 276

privilege of

142, 144-5, 148-9, 151, 153, 225-6

Paper

See Duties

Papists

See Religious Disabilities

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

Præmunientes clause

141

Præmunire facias

135

Pre-emption

See Purveyance

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

254, 291

Puisne

214

Purveyance and Pre-emption

22, 27, 277

Quakers

39, 61

Quia Emptores, statute of

153

Quorum, Justices of the

87

Rates

See Poor Law; Taxation, local

Recognition

207

Record, Courts of

106

Recordari, writ of

100

Recorders

111

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, 257

Request Courts

See Small Debts

Reserve forces

67-9

Revenues, royal and public

277, 280, 282, 291-3

Riding

74

Right

See Bill of Rights; Petition of Right

Riot

41, 47, 161

Act

251

Roman Catholics

See Religious Disabilities

Rome, See and Court of

240

Royal assent

191, 193

withholding of

147, 165

Saladin tithe

267

Sanitary laws

See Health, Public

Scandalum Magnatum

13

School Boards

122-4

Scot and lot

84, 159

Scutage (See Escuage)

Seal, Great

202, 237-8

Seal, Privy

237-8

Secretary of State

240, 242, 261

Sedition

48-9

Seisin (See Disseise)

9

Sessions, petty and special

91, 99

Sessions, 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

Ship-money

265, 275-6

Shire [scir, division], or county (See also County Palatine)

70

Shire-moot [scir-gemot] or County Court

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

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 Judicature

230-2

Swein-mote [assembly of sweins or freemen]

77

Syxhynman

5

Talliage

265, 269, 272

Taxation

264, 293

Taxation, local

90, 95-6, 109

Telegraphs

291

Tenants in capite

8, 13, 137

Tenants in chivalry

8-10, 25-27

Tenants in socage

10, 27

Test Act

31, 42

Test Act, Universities

63

Thegns

5-6, 175, 193

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

Wager of law

199, 208

Wapentake [So called from the inhabitants touching each other's weapons at stated meetings in token of fidelity]

74

Ward-mote [assembly of a borough ward]

84

Wards and Liveries, Court of

21, 27

Warrants, general

43–4, 51

Warrants, search

35, 51

Watchmen

103

Welshman [foreigner, man not of Teutonic birth]

6

Weregild [murder-money]

4, 7, 84

Witan, witenagemot [assembly of the witan or wise men]

127–8, 136–7, 151, 193, 238–4, 263

Woodmote

77

Yeomanry

59, 68, 264

Printed by

Neill and Company,

Edinburgh.