Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

The king, whose profession was to be a patron of liberty, Edward the First, could not oppose this; and as he was a prince of great wisdom and foresight, I think it is not irrational to suppose, that he might be pleased to see even the vassals of his lords, act in some sort independently of them, and look immediately to the king their lord’s lord. The effect was certainly this, by the power and influence their great fortunes gave them in the country, the majority of the commons were, for a long time, more in the dominion of the lords than of the crown; though, if the king was either a wise or a good prince, they were even then a considerable check upon the too mighty peers.

Every day, and by insensible steps, their house advanced in reputation and privileges and power; but since Henry the Seventh’s time, the progress has been very great. The encrease of commerce gave the commons ability to purchase; the extravagance of the lords gave them an inclination, the laws of that king gave them a power to alienate their intailed estates; insomuch that, as the share of property which the commons have is so disproportionate to that of the king and nobles, and that power is said to follow property, the opinion of many is, that, in our present situation, our government leans too much to the popular side; while others, though they admit it is so in appearance, reflecting what a number of the house of commons are returned by indigent boroughs, who are wholly in the power of a few great men, think the weight of the government is rather oligarchical[281].

LECTURE XXIII.

The privilege of voting for Knights of the Shire—The business of the different branches of the Legislature, distinct and separate—The method of passing laws—The history and form of the legislature in Ireland.

The house of commons growing daily in consequence, and the socage tenants having got the same privilege of voting for the knights of the shire as the military ones, it naturally followed, that every free person was ambitious of tendering his vote, and thereby of claiming a share in the legislature of his country. The number of persons, many of them indigent, resorting to such elections, introduced many inconveniences, which are taken notice of, and remedied by the statute of the eighth of Henry the sixth chapter the seventh which recites, that of late “elections of knights had been made by very great, outrageous, and excessive numbers of people of which the most part was of people of small substance, and of no value, whereof every one of them pretended a voice equivalent with the most worthy knights and esquires, whereby manslaughter, riots, batteries, and divisions among the gentlemen and other people of the same counties shall very likely rise and be, unless convenient and due remedy be provided in this behalf;” and then it provides that, “no persons should have votes, but such as have lands or tenements to the value of forty shillings a year above all charges.” And so the law stands at this day, though by the change in the value of money, by the spirit of this statute, no person should have a vote that could not dispend ten pounds a year at least. Such a regulation, were it now to be made, would, certainly, be of great advantage both to the representers and represented; but there is little prospect of its ever taking place: And if it should be proposed, it would be looked upon as an innovation, though in truth, it would be only returning to the original principles of the constitution[282].

Our legislature, then, consisting of three distinct parts, the king, lords, and commons, in process of time, each of them grew up to have distinct privileges, as to the beginning particular businesses. Thus all acts of general grace and pardon take their rise from the king; acts relative to the lords and matters of dignity, in that house; and the granting of money in the commons. How the commons came by this exclusive right, as to money matters, is not so easy to determine. Certain it is that, originally, the lords frequently taxed themselves, as did the commons the commonalty, without any communication with each other; but afterwards, when it was judged better to lay on general taxes, that should equally affect the whole nation, these generally took their rise in that house which represented the bulk of the people; and this, by steadiness and perseverance, they have arrogated so far into a right peculiar to themselves, as not to allow the lords a power to change the least title in a money bill. As to laws that relate not to these peculiar privileges, they now take their rise indifferently either in the lords or commons, and when framed into a bill, and approved by both, are presented to the king for his assent; and this has been the practice for these two or three hundred years past[283].

But the ancient method of passing laws was different, and was not only more respectful to, but left more power in the crown. The house which thought a new law expedient, drew up a petition to the king, setting forth the mischief, and praying that it might be redressed by such or such a remedy. When both houses had agreed to the petition, it was entered on the parliament-roll, and presented to the king, who gave such answer as he thought proper, either consenting in the whole, by saying, let it be as is desired, or accepting part and refusing or passing by the rest, or refusing the whole by saying, let the ancient laws be observed, or in a gentler tone, the king will deliberate. And after his answer was entered on the roll, the judges met, and on consideration of the petition and answer, drew up the act, which was sent to be proclaimed in the several counties[284].

Lord Coke very justly observes that these acts drawn up by men, masters of the law, were generally exceedingly well penned, short, and pithy, striking at the root of the grievance, and introducing no new ones; whereas the long and ill penned statutes of later days, drawn up in the houses, have given occasion to multitudes of doubts and suits, and often, in stopping one hole, have opened two. However, notwithstanding this inconvenience, there was good cause for the alteration of method. The judges, if at the devotion of the court, would sometimes, make the most beneficial laws elusory, by inserting a salvo to the prerogative, though there was none in the king’s answer; whereas, by following the present course, the subjects have reduced the king to his bare affirmative or negative, and he has lost that privilege, by the disuse of petitions, of accepting that part which was beneficial to himself, and denying the remainder[285].