Political and Consti tutional Results of the Revolu. tionary Period. ruled by the will of its elected representatives in Parliament, and under which all men (the Roman Catholic as yet excepted) should possess the great boon of religious freedom. But in practice he failed to carry out his ideal. Toleration was only partially conceded; and while the government was in form a Republic, it was in truth 'a despotism, moderated only by the wisdom, the sobriety, and the magnanimity of the despot.' Justice between man and man seems to have been administered as fairly as, if not more fairly than, under the Monarchy, but between the Government and the subject arbitrary rule prevailed. After the Royalist rising at Salisbury (March, 1655), when the Judges on circuit were seized and even threatened with hanging, the country was mapped out into military districts, under the command of Major-Generals, by whom every insurrectionary movement was immediately suppressed and punished. The death of Cromwell (3 Sept., 1658', and the weakness of his son and successor in the Protectorate, exposed the nation to the danger of being ruled by a succession of petty military despots; and almost all parties, postponing their differences, political and religious, welcomed back the Stuart dynasty and the old Civil Polity of the kingdom. But although the legal Constitution had been suspended during this period, and revived again at the accession of Charles II., the Great Rebellion of the English nation could not fail to produce certain permanent Political and Constitutional results. These may be summed up under the following heads: 1 Macaulay, Hist. i. (137). 2 Of course, in seeming, Cromwell's work died with him; his dynasty was rejected, his republic cast aside; but the spirit which culminated in him never sank again, never ceased to be a potent, though often a latent and volcanic, force in the country. Charles II. said that he would never go again on his travels, for anything or anybody; and he well knew that though the men whom he met at Worcester might be dead, still the spirit which warmed them was alive and young in others.' -Bagehot, Eng. Const. (2nd ed.) p. 282. [A very valuable addition to the history of the epoch of the Commonwealth from the point of view of its constitutional importance is given by Edw. Jenks, The Constitutional Experiments of the Commonwealth, Camb. Univ. Press, 1890. The author combats the theory of Professor v. Gneist, and, indeed, the prevailing idea that the English Republic (Commonwealth) was totally unfruitful in regard to the development of the constitution. The Long Parliament, the author avers, drew all State business to itself, and through the medium of its numerous parliamentary committees, actually exercised the supreme power within the realm. Moreover, he maintains that the traditions of this epoch, which never died out, principally explain the ease with which, at the commencement of the 18th century, the transition of the parliamentary form of government was effected. It seems, however, doubtful whether the author is correct, except for the period 1640-1649. In this connection it has been observed, that the significance of the Commonwealth consists before all else in the fact that England for the first time in its history showed the world what a strong resolute government, freed from the fetters of the mediaval parliamentary State, and a government which, in respect of broad Absolute ant influ 1. Although the cause of Monarchy was gained, that of Absolute Cause of Monarchy was lost for ever. Henceforth Royalists and Revolutionists Monarchy lost.] alike regarded the close union and mutual interdependence of Kings and Parliaments as necessary for the good government of the country. 2. The predominant influence of the House of Commons in the Predomingovernment of the nation was permanently established, and has ever ence of House of since been growing more and more marked and decisive. The over-s throw of the Crown and the House of Lords had been so violent and established 】 complete, that the unqualified restoration of their rights and dignity failed to reinstate them in their ancient ascendancy. The Royalists House of Commons of Charles II., in its relations to the Crown and the administration of the country, inherited, defended, and transmitted to its successors the conquests of the Long Parliament.' views and absence of prejudice was far in advance of its time, could achieve both without and within. For the attempts of the Commonwealth to form a constitution, vide Gneist, Hist. Engi. Const., p. 579, and note to p. 570; and Edw. Jenks, Hist. of the Rump Parliament, from the death of the King to its dissolution, cap. 2.—ED.] Commens A singular proof of the influence of the Commons under Charles II. is furnished Collisions by the result of the famous controversy between the two Houses as to the original between jurisdiction of the Lords in the case of Skinner v. The East India Company. The Lords and Lords having entertained a petition of Skinner against the Company, overruled the under defendants plea to the jurisdiction, and condemned them to pay the plaintiff Charles 11. £3,000, the Company presented a complaint to the House of Commons. The Skinner v. Commons resolved that the Lords, in taking cognizance of an original complaint. East India and that relievable in the ordinary course of law, had acted illegally, and in a Company. manner to deprive the subject of the benefit of the law. The Lords, in return, [1663-9] voted. That the House of Commons entertaining the scandalous petition of the East India Company against the Lords' House of Parliament, and their proceedings, examinations, and votes thereupon had and made, and a breach of the privileges of the House of Peers; and that their own proceedings in Skinner's case had been agreeable to the laws of the land, and weil warranted by the law and custom of Parliament, and justified by many Parliamentary precedents ancient and modern.' After two conferences between the Houses had failed to produce an amicable settlement of the dispute, the Commons voted Skinner into custody for a breach of privilege, and resolved that whoever should be aiding in execution of the order of the Lords against the East India Company should be deemed a betrayer of the liberties of the Commons of England and an infringer of the privileges of the House. The Lords, in return, committed to prison Sir Samuel Barnardiston, Chairman of the Company, and a member of the House of Commons, and imposed on him a fine of £500. By successive adjournments and prorogations the King managed to stop the course of the quarrel during fifteen months. But at the meeting of Parliament in 1669, the Commons renewed the dispute. Ultimately, the King recommended an erasure from the Journals of all that had passed on the subject, and an entire cessation,-an expedient which both Houses willingly embraced and from this time the Lords have tacitly abandoned all pretensions to an original jurisdiction in Civil suits. "After this time,' says Mr. Pike, Const. Hist. House of Lords. p. 282, the jurisdiction of the latter House (House of Lords), as a Court of first instance in civil causes, may be regarded as having been at an end." Vide also Hoiles, The Grand Question Concerning the Judicature of the House of Peers (1689); 8 Rep. Hist. MSS. Com., 165-168, cited by L. O. Pike, note to p. 281.-ED.] The Houses also came into collision on account [Definitive 3 The complete and definitive rejection of Romanism in England rejection of Romanism.] was assured; but the position of the National Church after the Restoration was no longer precisely the same as before the Rebellion. Down to the time of the Commonwealth the Church had never ceased, in legal theory and to a great extent in actual fact, to be co-extensive with the nation. At its deliberate and formal re-establishment by Charles II. and his Parliament, it was patently the Church not of the whole nation but of a majority only. Thenceforward, as the other religious communities have gradually attained first to toleration and then to Civil equality with the members of the National Church, the Ecclesiastical constitution, whilst still in theory national, has gradually come to be regarded not so much as the National Church (which legally it still continues to be), as the 'Established' Church, using the word Established' in its modern signification, as denoting a religious body standing in a special relation to the State in contradistinction from all other religious bodies.' [Antipathy 4. Another important result of the revolutionary crisis through to Standing which the nation had passed was the development of an intense national antipathy to a standing army, and of a widespread distrust Armies.) Shirley v. of men of extreme views. of what was deemed a breach of privilege in the citation of members of the Commons to appear before the Lords as respondents in Chancery appeals. The most celebrated case is the appeal of Shirley against Sir John Fagg, in 1675, which gave rise to much intemperate behaviour on both sides, and induced the Commons to vote that there lies no appeal to the judicature of the Lords in Parliament from Courts of Equity. The dispute was at length only put an end to by the long prorogation from November, 1673, to February, 1677. The particular appeal of Shirley was never revived; but the Lords continued without objection to exercise their general jurisdiction over appeals from Courts of Equity. Under Charles II., also, the Commons, in 1671, successfully resisted the right of the Lords to amend Money-Bills (supra, p. 478, n. 1). Hallam, Const. Hist. iii. 30. 1 See Guizot, English Revolution; and Freeman, Disestablishment and Disendowment. [On the Religious as well as the Political attitude of the Commons t. Car. I., cf. Burrows' Parliament and the Church of England, c. ii., where it is strongly urged that the Commons were practically the only representative of the lay voice of the Nation op. cit. p. 47.-C.] [Vide Gneist, Hist. Engl. Const., cap. xxxviii., The conflict of the Jure Diviño Monarchy with the Estates," and particularly on the contrasts between the State Church and the Roman Catholic Church, cf. P. 536, op. cit.-ED.] 511 CHAPTER XV. THE STUART PERIOD. III. FROM THE RESTORATION TO THE PASSING OF THE BILL OF RIGHTS (1660-1689). 11. THE reign of Charles II. has been epigrammatically described as CHARLES the era of good laws and bad government; ' but whilst the bad 1660-1635. government was continuous, the good laws appeared only at intervals Chief Conamidst many others of a violent and questionable character. We statutes of shall briefly consider the principal statutes of Constitutional import- his reign. ance. stitutional mi itary tenures. During the Commonwealth the vexatious emoluments derived from Abolition of the military tenures had been suspended, and at the Restoration the feeling was unanimous in favour of abolishing those intolerable Feudai burthens which had so long survived their original raison d'être. By the 12 Car. II. c. 24, it was enacted that the Court of Wards and Liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeiture of marriages, by reason of any tenure of the King's Majesty, or of any other, by knight service, and all other gifts, grants, or charges incident or arising therefrom, be totally taken away, from the 24th of February, 1645 (the date of the intermission of the Court of Wards by the Long Parliament); And that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the King's daughter or knighting his son, and all tenures of the King in capite, be likewise taken away: And that all By a legal fiction, the first year of Charles II.'s reign was called the twelfth ; King de jure, on the death of Charles I., 20 January, 1648-9; King de facto, at the Restoration, 29th May, 1660. ["Not without reason did the galled and cheated, robbed and oppressed nation send forth an exultant shout of relief and joy, when in 1660 the policy of Monk made it possible to exchange this delightful era of 'civil and religious liberty' for the tyranny of its old monarchy and its old institutions. the throne amid more heartfelt rejoicing than Charles English Monarchy, p. 156.-Ed.] Fox, Reign of James II. p. 22. No man ever came to Hargrave (Co. Litt. by 3 For the incidents of Feudal tenure, see supra, p. 49. Hargrave, 108, n. 5) considers this mention of tenures in capite to have been a mistake by the framers of the Act. It is, at all events, certain that the enactment was not intended to prohibit persons from holding immediately under the Crown. Indeed, it is in this manner that land in fee is now most usually held.—Stephen, Comm. (5th ed.) i. 209, n. g. sorts of tenures, held of the King or others, be turned into free and common sorage, save only tenures in frankalmoign, copyholds, and the honorary services of grand serjeanty. By the same statute the famous rights of purveyance and pre-emption were also finally abolished. The immediate and direct benefits conferred by this Act constituted a grateful boon to the landowners of the kingdom, and, so far as regards the abolition of purveyance, to the nation at large. Indirectly, too, the whole nation gained by the simplification of tenure, and more especially by the important change in the spirit of our constitution,' which Hallam has noted as a consequence of the curtailment, by this statute, of the prerogative of the Crown, which, 'by its practical exhibition in these two vexatious exercises of power, wardship and purveyance, kept up in the minds of the people a more distinct perception, as well as more awe, of the monarchy, than could be felt in later periods, when it has become, as it were, merged in the common course of law, and blended with the very complex mechanism of our institutions."- In consideration of the surrender of these Feudal privileges by the Crown, the Parliament resolved to make up the Royal revenue to the annual sum of £1,200.000. As the landed gentry were the great gainers by the surrender, they ought, in justice, to have been subjected to some compensatory tax and a proposal was made that a permanent tax should be laid on lands held in chivalry, which, as distinguished from those held in socage, had been Hereditary alone liable to the Feudal burthens. But being powerful in Parliament, the landowners succeeded, though only by the small majority of two, in substituting a hereditary Excise on beer and some other liquors, thus transferring their own particular burthen to the community at large.3 Excise granted in exchange. Act against tumultuous By the 13 Car. II. st. 1, c. 5, it was enacted that no petition to the petitioning. King or either House of Parliament for alteration of matters established 1661. [Such are the tenures by which the manor of Woodstock is held by the Duke of Marlborough, rendering on the second day of August in every year for ever, at the Castle of Windsor, one standard of colours, with flower-deluces painted thereupon, and the Strathfieldsaye estate by the Duke of Wellington, viz., the 'annual rendering to the Sovereign of a flag bearing the Royal Arms, on the anniversary of the Battle of Waterloo. For the tenure of Strathfieldsave, see Burke's Peerage, s. v. Wellington. A certain amount of confusion in the minds of the draftsnien of the 12 Car. II., c. 24, is pointed out by Digby, Hist. of Law of Real Property, p. 352.. For Grand Serjeanty, cf. Digby, op. cit., pp. 38. 355.-C.] Hallam, Const. Hist. ii. 311. 3 The Excise was not a newly invented tax, having been originally imposed by the Long Parliament in 1643. The introduction of the Excise into England was anticipated and feared, says Dowell, as early as the reign of James I., as it had been a success in the Low Countries, and James was a known imitator of Continental systems of taxation. Hist. of Taxation in England, i. p. 217.-C.] |