Collisions between Lords and Commons under Skinner v. 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 ascendancy. 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 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 conCharles II. demned them to pay the plaintiff £5,000, the Company presented a complaint to the House of Commons. The Commons resolved that the Lords, in taking cognizance 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, are 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 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. The Houses also came into collision on account of what was deemed a breach of privilege in the citation of members of the Commons Shirley v. to appear before the Lords as respondents in Chancery appeals. The most Fagg. 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, 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 : 3. The complete and definitive rejection of Romanism in England 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.1 4. Another important result of the revolutionary crisis through which the nation had passed was the development of an intense national antipathy to a standing army, and of a wide-spread distrust of men of extreme views. courts of equity. Under Charles II., also, the Commons, in 1671, successfully resisted the right of the Lords to amend money-bills (supra, p. 579). Hallam, Const. Hist. iii. 30. 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. On the history and meaning of the phrases Establishment and Established Church, and the sense in which the Church of England may be regarded as established, cf. Pt. ii. of Brewer's Church of England, ed. by L. T. Dibdin.-ED.] 620 CHARLES II. A.D. 1660-1685. CHAPTER XV. THE STUART PERIOD. III. FROM THE RESTORATION TO THE PASSING OF THE 2 THE reign of Charles II.1 has been epigrammatically described as the 'era of good laws and bad government; ' but whilst the bad government was continuous, the good Chief consti- laws appeared only at intervals amidst many others of a violent and questionable character. We shall briefly consider the principal statutes of Constitutional importance. tutional 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 forfeitures of marriage, 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 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., 20th January, 1648–9; king de facto, at the Restoration, 29th May, 1660. 2 Fox, Reign of James II. p. 22. marrying the King's daughter or knighting his son, and all tenures of the King in capite, be likewise taken away:1 And that 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 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.' 3 In 1 For the incidents of feudal tenure, see supra, p. 61. 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. 2 [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 Duke of Marlborough's tenure, see Woodstock Manor (Oxford and London, 1873), by Rev. E. Marshall, M. A. Mr. Marshall prints a contemporary Specification as well as the operative parts of the 3 & 4 Anne, c. 4 (or 6), which enabled the Crown to grant the Royal manor of Woodstock in perpetuity, contrary to the previous legislation of the same reign. For the tenure of Strathfieldsaye, see Burke's Peerage, s. v. Wellington. A certain amount of confusion in the minds of the draftsmen 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.-Ed.] 3 Hallam, Const. Hist. ii. 311. 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 Hereditary been alone liable to the feudal burthens. But being granted in 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.1 excise exchange. Act against By the 13 Car. II. st. 1, c. 5, it was enacted that no petitumultuous tion to the King or either House of Parliament for alterapetitioning. A.D. 1661. tion of matters established by law in Church or State (unless the contents thereof had been previously approved, in the country by three justices of the peace or the grand jury of the county, 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. Right of the subject to petition the Crown and Its historical ment. The right of petitioning the Crown and Parliament is one of the most valuable possessed by the subject, and seems to have been exercised from the earliest times. But for many centuries it was practically restricted to petitions for redress of private and local 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 peti 1 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.—Ed.] |