He per

French ambassadors with his malcontent commons. ceived, also, that by bringing home the duke of York from Scotland, and restoring him, in defiance of the test act, to the privy council, he had made the presumptive heir of the throne, possessed as he was of superior steadiness and attention, too near a rival to himself. These reflections appear to have depressed his mind in the latter months of his life, and to have produced that remarkable private reconciliation with the duke of Monmouth, through the influence of lord Halifax, which, had he lived, would very probably have displayed one more revolution in the uncertain policy of this reign. But a death, so sudden and inopportune as to excite suspicions of poison in some most nearly connected with him, gave a more decisive character to the system of government.

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STATE OF THE CONSTITUTION.

CHAP. XIII.

CHAPTER XIII.

ON THE STATE OF THE CONSTITUTION UNDER CHARLES II.

§ 1. Effect of the Press. 2. Restrictions upon it before and after the Restoration. § 3. Licensing Acts. 4. Political Writings checked by the Judges. § 5. Instances of illegal Proclamations not numerous. § 6. Juries fined for Verdicts. § 7. Question of their Right to return a general Verdict. § 8. Habeas Corpus Act passed. § 9. Differences between Lords and Commons. 10. Judicial Powers of the Lords historically traced. § 11. Their Pretensions about the Time of the Restoration. § 12. Resistance made by the Commons. Dispute about their original Jurisdiction, and that in Appeals from Courts of Equity. § 13. Question of the exclusive Right of the Commons as to Money Bills. 14. Its History. The Right extended further. 15. State of the Upper House under the Tudors and Stuarts. Augmentation of the Temporal Lords. $ 16. State of the Commons. Increase of their Members. Question as to Rights of Election. § 17. Four different Theories as to the original Principle.

§ 1. Ir may seem rather an extraordinary position, after the last chapters, yet is strictly true, that the fundamental privileges of the subject were less invaded, the prerogative swerved into fewer excesses, during the reign of Charles II. than in any former period of equal length. Thanks to the patriotic energies of Selden and Eliot, of Pym and Hampden, the constitutional boundaries of royal power had been so well established that no minister was daring enough to attempt any flagrant and general violation of them. The frequent session of parliament, and its high estimation of its own privileges, furnished a security against illegal taxation. Nothing of this sort has been imputed to the government of Charles, the first king of England, perhaps, whose reign was wholly free from such a charge. And as the nation happily escaped the attempts that were made after the Restoration to revive the star-chamber and high commission courts, there were no means of chastising political delinquencies except through the regular tribunals of justice and through the verdict of a jury. Ill as the one were often constituted, and submissive as the other might often be found, they afforded something more of a guaranty, were it only by the publicity of their proceedings, than the dark and silent divan of courtiers and prelates who sat in judgment under the two former kings of the house of Stuart. Though the bench was frequently subservient, the bar contained high-spirited advocates whose firm defense of their clients the judges often reproved, but no longer affected to punish. The press, above all, was in

continual service. An eagerness to peruse cheap and ephemeral tracts on all subjects of passing interest had prevailed ever since the Reformation. These had been extraordinarily multiplied from the meeting of the long parliament. Some thousand pamphlets of different descriptions, written between that time and the Restoration, may be found in the British Museum; and no collection can be supposed to be perfect. It would have required the summary process and stern severity of the court of star-chamber to repress this torrent, or reduce it to those bounds which a government is apt to consider as secure. But the measures taken with this view under Charles II. require to be distinctly noticed.

§ 2. In the reign of Henry VIII., when the political importance of the art of printing, especially in the great question of the Reformation, began to be apprehended, it was thought necessary to assume an absolute control over it, partly by the king's general prerogative, and still more by virtue of his ecclesiastical supremacy. Thus it became usual to grant by letters patent the exclusive right of printing the Bible or religious books, and afterward all others. The privilege of keeping presses was limited to the members of the stationers' company, who were bound by regulations established in the reign of Mary by the star-chamber, for the contravention of which they incurred the speedy chastisement of that vigilant tribunal. These regulations not only limited the number of presses, and of men who should be employed on them, but subjected new publications to the previous inspection of a licenser. The long parliament did not hesitate to copy this precedent of a tyranny they had overthrown; and, by repeated ordinances against unlicensed printing, hindered, as far as in them lay, this great instrument of political power from serving the purposes of their adversaries. Every government, however popular in name or origin, must have some uneasiness from the great mass of the multitude, some vicissitudes of public opinion to apprehend; and experience shows that republics, especially in a revolutionary season, shrink as instinctively, and sometimes as reasonably, from an open license of the tongue and pen, as the most jeal ous court. We read the noble apology of Milton for the freedom of the press with admiration; but it had little influence on the parliament to whom it was addressed.

§ 3. It might easily be anticipated, from the general spirit of lord Clarendon's administration, that he would not suffer the press to emancipate itself from these established shackles. A bill for the regulation of printing failed in 1661, from the

470

LICENSING ACTS.

CHAP. XIII.

commons' jealousy of the peers, who had inserted a clause exempting their own houses from search. But next year a statute was enacted, which, reciting "the well-government and regulating of printers and printing-presses to be matter of public care and concernment, and that by the general licentiousness of the late times many evil-disposed persons had been encouraged to print and sell heretical and seditious books," prohibits every private person from printing any book or pamphlet, unless entered with the stationers' company, and duly licensed in the following manner: to wit, books of law by the chancellor or one of the chief-justices, of history and politics by the secretary of state, of heraldry by the kings at arms, of divinity, physic, or philosophy, by the bishops of Canterbury or London, or, if printed at either university, by its chancellor. The number of master-printers was limited to twenty; they were to give security, to affix their names, and to declare the author, if required by the licenser. The king's messengers, by warrant from a secretary of state, or the master and wardens of the stationers' company, were empowered to seize unlicensed copies wherever they should think fit to search for them, and, in case they should find any unlicensed books suspected to contain matters contrary to the church or state, they were to bring them to the two bishops before mentioned, or one of the secretaries. No books were allowed to be printed out of London, except in York and in the universities. The penalties for printing without license were of course heavy. This act was only to last three years; and after being twice renewed (the last time until the conclusion of the first session of the next parliament), expired consequently in 1679; an era when the house of commons were happily in so different a temper that any attempt to revive it must have proved abortive. During its continuance the business of licensing books was intrusted to sir Roger L'Estrange, a well-known pamphleteer of that age, and himself a most scurrilous libeler in behalf of the party he espoused, that of popery and despotic power. It is hardly necessary to remind the reader of the objections that were raised to one or two lines in "Paradise Lost."

§ 4. Though a previous license ceased to be necessary, it was held by all the judges, having met for this purpose (if we believe chief-justice Scroggs) by the king's command, that all books scandalous to the government or to private persons may be seized, and the authors or those exposing such books punished; and that all writers of false news, though not scandalous or seditious, are indictable on that

account. But in a subsequent trial he informs the jury that, "when by the king's command we were to give in our opinion what was to be done in point of regulation of the press, we did all subscribe that to print or publish any news, books, or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law as an illegal thing. Suppose, now, that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicite; and the author ought to be convicted for it. And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority. The pretended libel in this case was a periodical pamphlet, entitled the "Weekly Pacquet of Advice from Rome;" being rather a virulent attack on popery then serving the purpose of a newspaper. These extraordinary propositions were so far from being loosely advanced, that the court of king's bench proceeded to make an order that the book should no longer be printed or published by any person whatsoever. Such an order was evidently beyond the competence of that court, were even the prerogative of the king in council as high as its warmest advocates could strain it. It formed, accordingly, one article of the impeachment voted against Scroggs in the next session. Another was for issuing general warrants (that is, warrants wherein no names are mentioned) to seize seditious libels and apprehend their authors. But this impeachment having fallen to the ground, no check was put to general warrants, at least issued by the secretary of state, till the famous judgment of the court of common pleas in 1763.

§ 5. Those encroachments on the legislative supremacy of parliament, and on the personal rights of the subject, by means of proclamations issued from the privy council, which had rendered former princes of both the Tudor and Stuart families almost arbitrary masters of their people, had fallen with the odious tribunal by which they were enforced. The king was restored to nothing but what the law had preserved to him. Few instances appear of illegal proclamations in his reign. One of these is a proclamation for shutting up coffee-houses, in December, 1675. I have already mentioned this as an intended measure of lord Clarendon. Coffee-houses were all at that time subject to a license, granted by the magistrates at quarter sessions. But, the licenses having been granted for a certain time, it was justly questioned whether they could in any manner be revoked.