Constitutional History of England, Henry VII to George II. Volume 3 of 3

by Henry Hallam

Question of the exclusive right of the commons as to money-bills.—During the interval between these two dissensions, which the suits of Skinner and Shirley engendered, another difference had arisen, somewhat less violently conducted, but wherein both houses considered their essential privileges at stake. This concerned the long agitated question of the right of the Lords to make alterations in money-bills. Though I cannot but think the importance of their exclusive privilege has been rather exaggerated by the House of Commons, it deserves attention; more especially as the embers of that fire may not be so wholly extinguished as never again to show some traces of its heat.

In our earliest parliamentary records, the Lords and Commons, summoned in a great measure for the sake of relieving the king's necessities, appear to have made their several grants of supply without mutual communication, and the latter generally in a higher proportion than the former. These were not in the form of laws, nor did they obtain any formal assent from the king, to whom they were tendered in written indentures, entered afterwards on the roll of parliament. The latest instance of such distinct grants from the two houses, as far as I can judge from the rolls, is in the 18th year of Edward III.[50] But in the 22nd year of that reign the Commons alone granted three fifteenths of their goods, in such a manner as to show beyond a doubt that the tax was to be levied solely upon themselves.[51] After this time, the Lords and Commons are jointly recited in the rolls to have granted them, sometimes, as it is expressed, upon deliberation had together. In one case it is said that the Lords, with one assent, and afterwards the Commons, granted a subsidy on exported wool.[52] A change of language is observable in Richard II.'s reign, when the Commons are recited to grant with the assent of the Lords; and this seems to indicate, not only that in practice the vote used to originate with the Commons, but that their proportion, at least, of the tax being far greater than that of the Lords (especially in the usual impositions on wool and skins, which ostensibly fell on the exporting merchant), the grant was to be deemed mainly theirs, subject only to the assent of the other house of parliament. This is, however, so explicitly asserted in a remarkable passage on the roll of 9 Hen. IV., without any apparent denial, that it cannot be called in question by any one.[53] The language of the rolls continues to be the same in the following reigns; the Commons are the granting, the Lords the consenting power. It is even said by the court of king's bench, in a year-book of Edward IV., that a grant of money by the Commons would be binding without assent of the Lords; meaning of course as to commoners only, though the position seems a little questionable even with the limitation. I have been almost led to suspect, by considering this remarkable exclusive privilege of originating grants of money to the Crown, as well as by the language of some passages in the rolls of parliament relating to them, that no part of the direct taxes, the tenths or fifteenths of goods, were assessed upon the Lords temporal and spiritual, except where they are positively mentioned, which is frequently the case. But as I do not remember to have seen this anywhere asserted by those who have turned their attention to the antiquities of our constitution, it may possibly be an unfounded surmise, or at least only applicable to the earlier period of our parliamentary records.

These grants continued to be made as before, by the consent indeed of the houses of parliament, but not as legislative enactments. Most of the few instances where they appear among the statutes are where some condition is annexed, or some relief of grievances so interwoven with them that they make part of a new law.[54] In the reign of Henry VII. they are occasionally inserted among the statutes, though still without any enacting words.[55] In that of Henry VIII. the form is rather more legislative, and they are said to be enacted by the authority of parliament, though the king's name is not often mentioned till about the conclusion of his reign;[56] after which a sense of the necessity of expressing his legislative authority seems to have led to its introduction in some part or other of the bill.[57] The Lords and Commons are sometimes both said to grant, but more frequently the latter with the former's assent, as continued to be the case through the reigns of Elizabeth and James I. In the first parliament of Charles I., the Commons began to omit the name of the Lords in the preamble of bills of supply, reciting the grant as if wholly their own, but in the enacting words adopted the customary form of statutes. This, though once remonstrated against by the upper house, has continued ever since to be the practice.

The originating power as to taxation was thus indubitably placed in the House of Commons; nor did any controversy arise upon that ground. But they maintained also that the Lords could not make any amendment whatever in bills sent up to them for imposing, directly or indirectly, a charge upon the people. There seems no proof that any difference between the two houses on this score had arisen before the restoration; and in the convention parliament the Lords made several alterations in undoubted money-bills, to which the Commons did not object. But in 1661, the Lords having sent down a bill for paving the streets of Westminster, to which they desired the concurrence of the Commons, the latter, on reading the bill a first time, "observing that it went to lay a charge upon the people, and conceiving that it was a privilege inherent in their house that bills of that nature should be first considered there," laid it aside, and caused another to be brought in.[58] When this was sent up to the Lords, they inserted a clause, to which the Commons disagreed, as contrary to their privileges, because the people cannot have any tax or charge imposed upon them, but originally by the House of Commons. The Lords resolved this assertion of the Commons to be against the inherent privileges of the House of Peers; and mentioned one precedent of a similar bill in the reign of Mary, and two in that of Elizabeth, which had begun with them. The present bill was defeated by the unwillingness of either party to recede; but for a few years after, though the point in question was still agitated, instances occur where the Commons suffered amendments in what were now considered as money-bills to pass, and others where the Lords receded from them rather than defeat the proposed measure. In April 1671, however, the Lords having reduced the amount of an imposition on sugar, it was resolved by the other house, "That in all aids given to the king by the Commons, the rate or tax ought not to be altered by the Lords."[59] This brought on several conferences between the houses, wherein the limits of the exclusive privilege claimed by the Commons were discussed with considerable ability, and less heat than in the disputes concerning judicature; but, as I cannot help thinking, with a decided advantage both as to precedent and constitutional analogy on the side of the peers.[60] If the Commons, as in early times, had merely granted their own money, it would be reasonable that their house should have, as it claimed to have, "a fundamental right as to the matter, the measure, and the time." But that the peers, subject to the same burthens as the rest of the community, and possessing no trifling proportion of the general wealth, should have no other alternative than to refuse the necessary supplies of the revenue, or to have their exact proportion, with all qualifications and circumstances attending their grant, presented to them unalterably by the other house of parliament, was an anomaly that could hardly rest on any other ground of defence than such a series of precedents as establish a constitutional usage; while, in fact, it could not be made out that such a pretension was ever advanced by the Commons before the present parliament. In the short parliament of April 1640, the Lords having sent down a message, requesting the other house to give precedency in the business they were about to matter of supply, it had been highly resented, as an infringement of their privilege; and Mr. Pym was appointed to represent their complaint at a conference. Yet even then, in the fervour of that critical period, the boldest advocate of popular privileges who could have been selected was content to assert that the matter of subsidy and supply ought to begin in the House of Commons.[61]

There seems to be still less pretext for the great extension given by the Commons to their acknowledged privilege of originating bills of supply. The principle was well adapted to that earlier period when security against misgovernment could only be obtained by the vigilant jealousy and uncompromising firmness of the Commons. They came to the grant of subsidy with real or feigned reluctance, as the stipulated price of redress of grievances. They considered the Lords, generally speaking, as too intimately united with the king's ordinary council, which indeed sat with them, and had perhaps, as late as Edward III.'s time, a deliberative voice. They knew the influence or intimidating ascendency of the peers over many of their own members. It may be doubted in fact whether the lower house shook off, absolutely and permanently, all sense of subordination, or at least deference, to the upper, till about the close of the reign of Elizabeth. But I must confess that, in applying the wise and ancient maxim, that the Commons alone can empower the king to levy the people's money, to a private bill for lighting and cleansing a certain town, or cutting dikes in a fen, to local and limited assessments for local benefit (as to which the Crown has no manner of interest, nor has anything to do with the collection), there was more disposition shown to make encroachments than to guard against those of others. They began soon after the revolution to introduce a still more extraordinary construction of their privilege, not receiving from the House of Lords any bill which imposes a pecuniary penalty on offenders, nor permitting them to alter the application of such as have been imposed below.[62]

These restrictions upon the other house of parliament, however, are now become, in their own estimation, the standing privileges of the Commons. Several instances have occurred during the last century, though not, I believe, very lately, when bills, chiefly of a private nature, have been unanimously rejected, and even thrown over the table by the speaker, because they contained some provision in which the Lords had trespassed upon these alleged rights.[63] They are, as may be supposed, very differently regarded in the neighbouring chamber. The Lords have never acknowledged any further privilege than that of originating bills of supply. But the good sense of both parties, and of an enlightened nation, who must witness and judge of their disputes, as well as the natural desire of the government to prevent in the outset any altercation that must impede the course of its measures, have rendered this little jealousy unproductive of those animosities which it seemed so happily contrived to excite. The one house, without admitting the alleged privilege, has generally been cautious not to give a pretext for eagerly asserting it; and the other, on the trifling occasions where it has seemed, perhaps unintentionally, to be infringed, has commonly resorted to the moderate course of passing a fresh bill to the same effect, after satisfying its dignity by rejecting the first.

State of the upper house under the Tudors and Stuarts.—It may not be improper to choose the present occasion for a summary view of the constitution of both houses of parliament under the lines of Tudor and Stuart. Of their earlier history the reader may find a brief, and not, I believe, very incorrect account in a work to which this is a kind of sequel.

Augmentation of the temporal lords.—The number of temporal lords summoned by writ to the parliaments of the house of Plantagenet was exceedingly various; nor was anything more common in the fourteenth century than to omit those who had previously sat in person, and still more their descendants. They were rather less numerous for this reason, under the line of Lancaster, when the practice of summoning those who were not hereditary peers did not so much prevail as in the preceding reigns. Fifty-three names however appear in the parliament of 1454, the last held before the commencement of the great contest between York and Lancaster. In this troublous period of above thirty years, if the whole reign of Edward IV. is to be included, the chiefs of many powerful families lost their lives in the field or on the scaffold, and their honours perished with them by attainder. New families, adherents of the victorious party, rose in their place; and sometimes an attainder was reversed by favour; so that the peers of Edward's reign were not much fewer than the number I have mentioned. Henry VII. summoned but twenty-nine to his first parliament, including some whose attainder had never been judicially reversed; a plain act of violence, like his previous usurpation of the Crown. In his subsequent parliaments the peerage was increased by fresh creations, but never much exceeded forty. The greatest number summoned by Henry VIII. was fifty-one; which continued to be nearly the average in the two next reigns, and was very little augmented by Elizabeth. James, in his thoughtless profusion of favour, made so many new creations, that eighty-two peers sat in his first parliament, and ninety-six in his latest. From a similar facility in granting so cheap a reward of service, and in some measure perhaps from the policy of counteracting a spirit of opposition to the court, which many of the Lords had begun to manifest, Charles called no less than one hundred and seventeen peers to the parliament of 1628, and one hundred and nineteen to that of November 1640. Many of these honours were sold by both these princes; a disgraceful and dangerous practice, unheard of in earlier times, by which the princely peerage of England might have been gradually levelled with the herd of foreign nobility. This has occasionally, though rarely, been suspected since the restoration. In the parliament of 1661, we find one hundred and thirty-nine lords summoned.

The spiritual lords, who, though forming another estate in parliament, have always been so united with the temporality that the suffrages of both upon every question are told indistinctly and numerically, composed in general, before the reformation, a majority of the upper house; though there was far more irregularity in the summonses of the mitred abbots and priors than those of the barons. But by the surrender and dissolution of the monasteries, about thirty-six votes of the clergy on an average were withdrawn from the parliament; a loss ill compensated to them by the creation of five new bishoprics. Thus, the number of the temporal peers being continually augmented, while that of the prelates was confined to twenty-six, the direct influence of the church on the legislature has become comparatively small; and that of the Crown, which, by the pernicious system of translations and other means, is generally powerful with the episcopal bench, has, in this respect at least, undergone some diminution. It is easy to perceive from this view of the case that the destruction of the monasteries, as they then stood, was looked upon as an indispensable preliminary to the reformation; no peaceable efforts towards which could have been effectual without altering the relative proportions of the spiritual and temporal aristocracy.