[Cause of Absolute Monarchy lost.] [Predominant influ ence of House of Commons established.] Collisions between Lords and Commons under Charles II. Skinner v. (1) Although the cause of Monarchy was gained, that of Absolute Monarchy was lost for ever. Henceforth Royalists and Revolutionists 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 government of the nation was permanently established, and has ever since been growing more and more marked and decisive. The overthrow of the Crown and the House of Lords had been so violent and complete, that the unqualified restoration of their rights and dignity failed to reinstate them in their ancient ascendency. The Royalist 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.1 which warmed them was alive and young in others."-Bagehot, Eng. Const. (2nd edit.), p. 282. [A 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 Constitution Experiments of the Commonwealth (Camb. 1890). The author combats the theory of Professor v. Gneist, and indeed, the prevailing idea that the English Commonwealth was totally unfruitful in regard to the development 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 mediæval parliamentary State, and a government which, in respect of broad 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. Engl. Const., p. 576, and note to p. 579; and Edw. Jenks, Hist. of the Rump Parliament, cap. 2.-ED.] 1 A singular proof of the influence of the Commons under Charles II. is furnished by the result of the famous controversy between the two Houses as to the original jurisdiction of the Lords in the case of Skinner v. The East India Company. The Lords having entertained a petition of Skinner against the Company, overruled the defendants' plea to the jurisdiction, and condemned them to pay the plaintiff £5000, the Company presented a complaint to the House of Commons. The Commons resolved" that the Lords, in taking cognisance of an original complaint, and that relievable in the ordinary course of law, had acted illegally, and in a manner to deprive the subject of the benefit of the law." The Lords, in return, 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 well 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 privi Romanism.] (3) The complete and definitive rejection of Romanism in [Definitive England was assured; but the position of the National Church rejection of 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.1 (4) Another important result of the revolutionary crisis [Antipathy through which the nation had passed was the development of to standing armies.] an intense national antipathy to a standing army, and of a widespread distrust of men of extreme views. lege, 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 Holles, 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 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 Shirley v. John Fagg, in 1675, which gave rise to much intemperate behaviour on Fagg. both sides, and induced the Commons to vote that there lies no appeal to [1675.] 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 1675 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. 451, n.). Hallam, Const. Hist., iii. 30. 1 See Guizot, English Revolution; and Freeman, Disestablishment and Disendowment. [Vide Gneist, Hist. Eng. Const., cap. xxxviii., "The Conflict of the Jure Divino Monarchy with the Estates," and particularly on the contrasts between the State Church and the Roman Catholic Church, cf. p. 536, op. cit.—ED.] CHAPTER XV. THE STUART PERIOD. III. FROM THE RESTORATION TO THE PASSING OF THE BILL OF RIGHTS (1660-1689). CHARLES THE reign of Charles II.1 has been epigrammatically described as the "era of good laws and bad government ; "2 but whilst the bad government was continuous, the good laws appeared only at intervals amidst many others of a violent and questionable character. We shall briefly consider the principal statutes of Constitutional importance. II. 1660-1685. Chief Constitutional statutes of his reign. Abolition of military tenures. During the Commonwealth the vexatious emoluments derived from the military tenures had been suspended, and at the Restoration the feeling was unanimous in favour of abolishing those intolerable feudal 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 February 24, 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 :3 And that 1 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., January 20, 1648--1649; King de facto, at the Restoration, May, 29, 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. No man ever came to the throne amid more heartfelt rejoicing than Charles II." -F. W. Bain, The English Monarchy, p. 156.-ED.] 2 Fox, Reign of James II., p. 22. 3 For the incidents of feudal tenure, see supra, p. 45, seq. Hargrave (Co. Litt. by 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. all sorts of tenures, held of the king or others, be turned into free and common socage, save only tenures in frankalmoign, copyholds, and the honorary services of grand serjeanty. By the same statute the famous rights of purveyance and preemption 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." 1 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 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 Hereditary liquors, thus transferring their own particular burthen to the Excise community at large.2 granted in exchange. By the 13 Car. II. st. 1, c. 5, it was enacted that no petition to Act against the King or either House of Parliament for alteration of matters tumultuous petitioning. established by law in Church or State (unless the contents thereof 1661. had been previously approved, in the country by three justices of the peace or the grand jury of the country, and in London by the Lord Mayor, Aldermen and Common Council), should be signed by more than twenty, or delivered by more than ten, persons, under penalty in either case of £100 fine and three months' imprisonment. The right of petitioning the Crown and Parliament is one of the Right of the most valuable possessed by the subject, and seems to have been subject to petition the exercised from the earliest times. But for many centuries it was Crown and practically restricted to petitions for redress of private and local Parliament. 1 Hallam, Const. Hist., ii. 311. 2 The Excise was not a newly invented tax, having been originally imposed by the Long Parliament in 1643. develop ment. grievances, and the remedies prayed for were such as have since been provided by Courts of Equity and by private Acts of Parliament. The practice of petitioning on political subjects came into vogue during the period of the Great Rebellion, many petitions, signed by large bodies of people, being presented both to Charles I. and the Long Parliament; and it was probably the recollection of the intimidation exercised by numerous bodies of petitioners in the early days of the Long Parliament which prompted this restraining Act of Charles II. In December 1679, in consequence of the dissatisfaction of the nation at the repeated prorogations, great exertions were made to get up numerously signed petitions to the king for the assembling of Parliament. A Royal Proclamation was thereupon issued, forbidding all persons to sign such petitions under pain of punishment. This, though it checked, did not entirely prevent the presentation of these petitions. Counter-addresses were therefore sent up to the throne from grand juries, magistrates, and many corporations, expressing their abhorrence of the petitions for the assembling of Parliament; whence the two principal parties in the country, subsequently distinguished as Whigs and Tories, obtained for the time the names of Petitioners and Abhorrers. By the Bill of Rights the right of the subject to petition the king was expressly sanctioned; but the House of Commons for a long time showed itself intolerant of a free expression of opinion, and extremely jealous of any semblance of interference with its functions. In 1701 the Commons imprisoned five of the Kentish petitioners until the end of the session, for praying the House to attend to the voice of the people and turn its loyal addresses into Bills of Supply. Any petition expressing opinions of which the majority of the House did not approve was liable to summary rejection. In 1772, a most temperate petition signed, by about 250 of the clergy and by several members of the professions of Law and Physic, praying for relief from subscription to the Thirty-nine Articles, was rejected by a large majority of the Commons. Seven years later, however, in 1779, a widely-organised attempt to procure parliamentary and economical reform gave rise to a general system of petitioning, in which the freeholders of Yorkshire led the way and were soon followed by many other important counties and by the principal cities. This," observes Sir Erskine May, "may be regarded as the origin of the modern system of petitioning, by which public measures, and matters of general policy, have been pressed upon the attention of Parliament. Corresponding committees being established in various parts of the country were associated for the purpose of effecting a common object by means of petitions, to be followed by concerted motions made in Parliament. An organisation which has since been so often used with success was now first introduced into |