444

STATE OF THE COMMONS.

CHAP. XIII. and burgesses from 111 towns (London sending four), none of which have since intermitted their privilege.

The change which appears to have taken place in the English government towards the end of the thirteenth century was founded upon the maxim that all who possessed landed or moveable property ought, as freemen, to be bound by no laws, and especially by no taxation, to which they had not consented through their representatives. If we look at the constituents of a house of commons under Edward I. or Edward III., and consider the state of landed tenures and of commerce at that period, we shall perceive that, excepting women, who have generally been supposed capable of no political right but that of reigning, almost every one who contributed towards the tenths and fifteenths granted by the parliament might have exercised the franchise of voting for those who sat in it. I do not pretend that no one was contributory to a subsidy who did not possess a vote, but that the far greater portion was levied on those who, as freeholders or burgesses, were reckoned in law to have been consenting to its imposition. It would be difficult probably to name any town of the least consideration in the fourteenth and fifteenth centuries which did not, at some time or other, return members to parliament. This is so much the case that if, in running our eyes along the map, we find any seaport, as Sunderland or Falmouth, or any inland town, as Leeds or Birmingham, which had never enjoyed the elective franchise, we may conclude at once that it has emerged from obscurity since the reign of Henry VIII.4

Though scarce any considerable town, probably, was intentionally left out, except by the sheriff's partiality, it is not to be supposed that all boroughs that made returns were considerable. Several that are currently said to be decayed were never much better than at present. Some of these were the ancient demesne of the crown; the tenants of which, not being suitors to the county courts, not voting in the election of knights for the shire, were, still on the same principle of consent to public burthens, called upon to send their own representatives. Others received the privilege along with their charter of incorporation, in the hope that they would thrive more than proved to be the event; and possibly, even in such early times, the idea of obtaining influence in the commons through the votes of their burgesses might sometimes suggest itself.

That, amidst all this care to secure the positive right of representation, so little provision should have been made as to its relative

Though the proposition in the text is, I believe, generally true, it has oc curred to me since that there are some

exceptions in the northern parts of England; and that both Sheffield and Manchester are among them.

efficiency, that the high-born and opulent gentry should have been so vastly outnumbered by peddling traders, that the same number of two should have been deemed sufficient for the counties of York and Rutland, for Bristol and Gatton, are facts more easy to wonder at than to explain; for though the total ignorance of the government as to the relative population might be perhaps a sufficient reason for not making an attempt at equalization, yet, if the representation had been founded on anything like a numerical principle, there would have been no difficulty in reducing it to the proportion furnished by the books of subsidy for each county and borough, or at least in a rude approximation towards a more rational distribution.

Henry VIII. gave a remarkable proof that no part of the kingdom, subject to the English laws and parliamentary burthens, ought to want its representation, by extending the right of election to the whole of Wales, the counties of Chester and Monmouth, and even the towns of Berwick and Calais. It might be possible to trace the reason why the county of Durham was passed over. The attachment of those northern parts to popery seems as likely as any other. Thirty-three were thus added to the commons. Edward VI. created fourteen boroughs, and restored ten that had disused their privilege. Mary added twenty-one, Elizabeth sixty, and James twenty-seven members.

These accessions to the popular chamber of parliament after the reign of Henry VIII. were by no means derived from a popular principle, such as had influenced its earlier constitution. We may account perhaps on this ground for the writs addressed to a very few towns, such as Westminster. But the design of that great influx of new members from petty boroughs, which began in the short reigns of Edward and Mary, and continued under Elizabeth, must have been to secure the authority of government, especially in the successive revolutions of religion. Five towns only in Cornwall made returns at the accession of Edward VI.; twentyone at the death of Elizabeth. It will not be pretended that these wretched villages were seats of commerce and industry in the sixteenth century. But the county of Cornwall was more immediately subject to a coercive influence, through the indefinite and oppressive jurisdiction of the stannary court. Similar motives, if we could discover the secrets of those governments, doubtless operated in most other cases. A slight difficulty seems to have been raised in 1563 about the introduction of representatives from eight new boroughs at once by charters from the crown, but was soon waived with the complaisance usual in those times. Many of the towns which had abandoned their privilege at a time when they were compelled to the payment of daily wages to their members during the session, were now desirous of recovering it when that

446

ORIGINAL RIGHT OF THE

CHAP. XIII.

And

burthen had ceased and the franchise had become valuable. the house, out of favour to popular rights, laid it down in the reign of James I. as a principle, that every town which has at any time returned members to parliament is entitled to a writ as a matter of course. The speaker accordingly issued writs to Hertford, Pomfret, Ilchester, and some other places, on their petition. The restorations of boroughs in this manner, down to 1641, are fifteen in number. Charles I., whose temper inspired him rather with a systematic abhorrence of parliaments than with any notion of managing them by influence, created no new boroughs. The right indeed would certainly have been disputed, however frequently exercised. In 1673 the county and city of Durham, which had strangely been unrepresented to so late an era, were raised by act of parliament to the privileges of their fellow-subjects. About the same time a charter was granted to the town of Newark, enabling it to return two burgesses. It passed with some little objection at the time; but four years afterwards, after two debates, it was carried on the question, by 125 to 73, that, by virtue of the charter granted to the town of Newark, it hath right to send burgesses to serve in parliament. Notwithstanding this apparent recognition of the king's prerogative to summon burgesses from a town not previously represented, no later instance of its exercise has occurred; and it would unquestionably have been resisted by the commons, not, as is vulgarly supposed, because the act of union with Scotland has limited the English members to 513 (which is not the case), but upon the broad maxims of exclusive privilege in matters relating to their own body, which the house was become powerful enough to assert against the crown.

§ 17. It is doubtless a problem of no inconsiderable difficulty to determine with perfect exactness by what class of persons the elective franchise in ancient boroughs was originally possessed. The different opinions on this controverted question may be reduced to the four following theses:-1. The original right, as enjoyed by boroughs represented in the parliaments of Edward I., and all of later creation, where one of a different nature has not been expressed in the charter from which they derive the privilege, was in the inhabitant householders resident in the borough, and paying scot and lot; under those words including local rates, and probably general taxes. 2. The right sprang from the tenure of certain freehold lands or burgages within the borough, and did not belong to any but such tenants. 3. It was derived from charters of incorporation, and belonged to the community or freemen of the corporate body. 4. It did not extend to the generality of freemen, but was limited to the governing part or municipal magistracy.

Of these propositions the first was laid down by a celebrated

committee of the house of commons in 1624, the chairman whereof was serjeant Glanville, and the members, as appears by the list in the Journals, the most eminent men, in respect of legal and constitutional knowledge, that were ever united in such a body. It is called by them the common-law right, and that which ought always to obtain where prescriptive usage to the contrary cannot be shown. But it has met with very little favour from the house of commons since the Restoration. The second has the authority of lord Holt in the case of Ashby and White, and of some other lawyers who have turned their attention to the subject. It countenances what is called the right of burgage tenure; the electors in boroughs of this description being such as hold burgages or ancient tenements within the borough. The next theory, which attaches the primary franchise to the freemen of corporations, has on the whole been most received in modern times, if we look either at the decisions of the proper tribunal, or the current doctrine of lawyers. The last proposition is that of Dr. Brady, who, in a treatise of boroughs, written to serve the purposes of James II., though not published till after the Revolution, endeavoured to settle all elective rights on the narrowest and least popular basis. This work gained some credit, which its perspicuity and acuteness would deserve, if these were not disgraced by a perverse sophistry and suppression of truth.5

5 It is unnecessary now to discuss these propositions, as the Reform bills of 1832 and 1867 have of course rendered a dis

quisition on the ancient rights of election in boroughs a matter of merely historical interest.

448

REGARD FOR ANCIENT FORMS.

CHAP. XIV.

CHAPTER XIV.

THE REIGN OF JAMES II.

1. Designs of the King. 2. Parliament of 1685. § 3. King's Intention to repeal the Test Act. 4. Deceived as to the Dispositions of his Subjects. § 5. First period of his reign. Prorogation of Parliament. 6. Second period of his reign. § 7. Dispensing Power confirmed by the Judges. 8. Ecclesiastical Commission. § 9. King's Scheme of establishing Popery. 10. Dismissal of Lord Rochester. § 11. Prince of Orange alarmed. Plan of setting the Princess aside. Rejected by the King. Overtures of the Malcontents to Prince of Orange. 12. Declaration for Liberty of Conscience. § 13. Addresses in favour of it. § 14. New Modelling of the Corporations. 15. Affair of Magdalen College. § 16. Infatuation of the King. 17. His Coldness towards Louis. 18. Invitation signed to the Prince of Orange. Birth of Prince of Wales. 19. Justice and Necessity of the Revolution. 20. Favourable Circumstances attending it. 21. Its Salutary Consequences. 22. Proceedings of the Convention. 23. Ended by the Elevation of William and Mary to the Throne.

§ 1. THE question concerning the right and usage of election in boroughs, was perhaps of less practical importance in the reign of Charles II. than we might at first imagine. Whoever might be the legal electors, it is undoubted that a great preponderance was virtually lodged in the select body of corporations. It was the knowledge of this that produced the corporation act soon after the Restoration, to exclude the presbyterians, and the more violent measures of quo warranto at the end of Charles's reign. If by placing creatures of the court in municipal offices, or by intimidating the former corporators through apprehensions of forfeiting their common property and lucrative privileges, what was called a loyal parliament could be procured, the business of government, both as to supply and enactment or repeal of laws, would be carried on far more smoothly and with less scandal than by their entire disuse. Few of those who assumed the name of tories were prepared to sacrifice the ancient fundamental forms of the constitution. They thought it equally necessary that a parliament should exist, and that it should have no will of its own, or none, at least, except for the preservation of that ascendency of the established religion which even their loyalty would not consent to surrender.

It is not easy to determine whether James II. had resolved to complete his schemes of arbitrary government by setting aside even the nominal concurrence of the two houses of Parliament in legislative enactments, and especially in levying money on his subjects. He could hardly avoid perceiving that the constant acquiescence of