There can, I should conceive, be little pretence for affecting to doubt that the burgesses of Domesday-book, of the various early records cited by Madox and others, and of the writs of summons to Edward's parliament, were inhabitants of tenements within the borough. But it may remain to be proved that any were entitled to the privileges or rank of burgesses, who held less than an estate of freehold in their possessions. The burgage-tenure, of which we read in Littleton, was evidently freehold; and it might be doubtful whether the lessees of dwellings for a term of years, whose interest, in contemplation of law, is far inferior to a freehold, were looked upon as sufficiently domiciled within the borough to obtain the appellation of burgesses. It appears from Domesday that the burgesses, long before any incorporation, held lands in common belonging to their town; they had also their guild or market-house, and were entitled in some places to tolls and customs. These permanent rights seem naturally restrained to those who possessed an absolute property in the soil. There can surely be no question as to mere tenants at will, liable to be removed from their occupation at the pleasure of the lord; and it is perhaps unnecessary to mention that the tenancy from year to year, so usually present, is of very recent introduction. As to estates for a term of years, even of considerable duration, they were probably not uncommon in the time of Edward I.; yet far outnumbered, as I should conceive, by those of a freehold nature. Whether these lessees were contributory to the ancient local burthens of scot and lot, as well as to the tallages exacted by the king, and tenths afterwards imposed by parliament in respect of movable estate, it seems not easy to determine; but if they were so, as appears more probable, it was not only consonant to the principle, that no freeman should be liable to taxation without the consent of his representatives, to give them a share in the general privilege of the borough, but it may be inferred with sufficient evidence from several records, that the privilege and the burthen were absolutely commensurate; men having been specially discharged from contributing to tallages, because they did not participate in the liberties of the borough, and others being expressly declared subject to those impositions, as the condition of their being admitted to the rights of burgesses.[69] It might however be conjectured that a difference of usage between those boroughs, where the ancient exclusive rights of burgage tenants were maintained, and those where the equitable claim of taxable inhabitants possessing only a chattel interest received attention, might ultimately produce those very opposite species of franchise, which we find in the scot and lot borough, and in those of burgage-tenure. If the franchise, as we now denominate it, passed in the thirteenth century for a burthen, subjecting the elector to bear his part in the payment of wages to the representative, the above conjecture will be equally applicable, by changing the words right and claim into liability.[70]
It was according to the natural course of things, that the mayors or bailiffs, as returning officers, with some of the principal burgesses (especially where incorporating charters had given them a pre-eminence), would take to themselves the advantage of serving a courtier or neighbouring gentleman, by returning him to parliament, and virtually exclude the general class of electors, indifferent to public matters, and without a suspicion that their individual suffrages could ever be worth purchase. It is certain that a seat in the Commons was an object of ambition in the time of Edward IV., and I have little doubt that it was so in many instances much sooner. But there existed not the means of that splendid corruption which has emulated the Crassi and Luculli of Rome. Even so late as 1571, Thomas Long, a member for Westbury, confessed that he had given four pounds to the mayor and another person for his return. The elections were thus generally managed, not often perhaps by absolute bribery, but through the influence of the government and of the neighbouring aristocracy; and while the freemen of the corporation, or resident householders, were frequently permitted, for the sake of form, to concur in the election, there were many places where the smaller part of the municipal body, by whatever names distinguished, acquired a sort of prescriptive right through an usage, of which it was too late to show the commencement.[71]
It was perceived, however, by the assertors of the popular cause under James I. that, by this narrowing of the electoral franchise, many boroughs were subjected to the influence of the privy council, which, by restoring the householders to their legitimate rights, would strengthen the interests of the country. Hence Lord Coke lays it down in his fourth institute, that "if the king newly incorporate an ancient borough, which before sent burgesses to parliament, and granteth that certain selected burgesses shall make election of the burgesses of parliament, where all the burgesses elected before, this charter taketh not away the election of the other burgesses. And so, if a city or borough hath power to make ordinances, they cannot make an ordinance that a less number shall elect burgesses for the parliament than made the election before; for free elections of members of the high court of parliament are pro bono publico, and not to be compared to other cases of election of mayors, bailiffs, etc., of corporations.[72] He adds, however, "by original grant or by custom, a selected number of burgesses may elect and bind the residue." This restriction was admitted by the committee over which Glanville presided in 1624.[73] But both they and Lord Coke believed the representation of boroughs to be from a date before what is called legal memory, that is, the accession of Richard I. It is not easy to reconcile their principle, that an elective right once subsisting could not be limited by anything short of immemorial prescription, with some of their own determinations, and still less with those which have subsequently occurred, in favour of a restrained right of suffrage. There seems, on the whole, great reason to be of opinion, that where a borough is so ancient as to have sent members to parliament before any charter of incorporation proved, or reasonably presumed to have been granted, or where the word burgensis is used without anything to restrain its meaning in an ancient charter, the right of election ought to have been acknowledged either in the resident householders paying general and local taxes, or in such of them as possessed an estate of freehold within the borough. And whatever may have been the primary meaning of the word burgess, it appears consonant to the popular spirit of the English constitution that, after the possessors of leasehold interests became so numerous and opulent as to bear a very large share in the public burthens, they should have enjoyed commensurate privileges; and that the resolution of Mr. Glanville's committee in favour of what they called the common-law right should have been far more uniformly received, and more consistently acted upon, not merely as agreeable to modern theories of liberty, from which some have intimated it to have sprung, but as grounded on the primitive spirit and intention of the law of parliament.
In the reign of Charles II. the House of Commons seems to have become less favourable to this species of franchise. But after the revolution, when the struggle of parties was renewed every three years throughout the kingdom, the right of election came more continually into question, and was treated with the grossest partiality by the house, as subordinate to the main interests of the rival factions. Contrary determinations for the sole purpose of serving these interests, as each grew in its turn more powerful, frequently occurred; and at this time the ancient right of resident householders seems to have grown into disrepute, and given way to that of corporations, sometimes at large, sometimes only in a limited and very small number. A slight check was imposed on this scandalous and systematic injustice by the act 2 G. ii. c. 2, which renders the last determination of the House of Commons conclusive as to the right of election.[74] But this enactment confirmed many decisions that cannot be reconciled with any sensible rule. The same iniquity continued to prevail in cases beyond its pale; the fall of Sir Robert Walpole from power was reckoned to be settled, when there appeared a small majority against him on the right of election at Chippenham, a question not very logically connected with the merits of his administration; and the house would to this day have gone on trampling on the franchises of their constituents, if a statute had not been passed through the authority and eloquence of Mr. Grenville, which has justly been known by his name. I shall not enumerate the particular provisions of this excellent law, which, in point of time, does not fall within the period of my present work; it is generally acknowledged that, by transferring the judicature in all cases of controverted elections, from the house to a sworn committee of fifteen members, the reproach of partiality has been a good deal lightened, though not perhaps effaced.
CHAPTER XIV
THE REIGN OF JAMES II.
The great question that has been brought forward at the end of the last chapter, concerning the right and usage of election in boroughs, was perhaps of less practical importance in the reign of Charles the Second than we might at first imagine, or than it might become in the present age. Whoever might be the legal electors, it is undoubted that a great preponderance was virtually lodged in the select body of corporations. It was the knowledge of this that produced the corporation act soon after the restoration, to exclude the presbyterians, and the more violent measures of quo warranto at the end of Charles's reign. If by placing creatures of the court in municipal offices, or by intimidating the former corporators through apprehensions of forfeiting their common property and lucrative privileges, what was called a loyal parliament could be procured, the business of government, both as to supply and enactment or repeal of laws, would be carried on far more smoothly, and with less scandal than by their entire disuse. Few of those who assumed the name of tories were prepared to sacrifice the ancient fundamental forms of the constitution. They thought it equally necessary that a parliament should exist, and that it should have no will of its own, or none at least, except for the preservation of that ascendancy of the established religion which even their loyalty would not consent to surrender.
Designs of the king.—It is not easy to determine whether James II. had resolved to complete his schemes of arbitrary government by setting aside even the nominal concurrence of the two houses of parliament in legislative enactments, and especially in levying money on his subjects. Lord Halifax had given him much offence towards the close of the late reign, and was considered from thenceforth as a man unfit to be employed, because in the cabinet, on a question whether the people of New England should be ruled in future by an assembly or by the absolute pleasure of the Crown, he had spoken very freely against unlimited monarchy.[75] James indeed could hardly avoid perceiving that the constant acquiescence of an English House of Commons in the measures proposed to it, a respectful abstinence from all intermeddling with the administration of affairs, could never be relied upon or obtained at all, without much of that dexterous management and influence which he thought it both unworthy and impolitic to exert. It seems clearly that he had determined on trying their obedience merely as an experiment, and by no means to put his authority in any manner within their control. Hence he took the bold step of issuing a proclamation for the payment of customs, which by law expired at the late king's death;[76] and Barillon mentions several times, that he was resolved to continue in the possession of the revenue, whether the parliament should grant it or no. He was equally decided not to accept it for a limited time. This, as his principal ministers told the ambassador, would be to establish the necessity of convoking parliament from time to time, and thus to change the form of government by rendering the king dependent upon it; rather than which it would be better to come at once to the extremity of a dissolution, and maintain the possession of the late king's revenues by open force.[77] But the extraordinary conduct of this House of Commons, so unlike any that had met in England for the last century, rendered any exertion of violence on this score quite unnecessary.
Parliament of 1685.—The behaviour of that unhonoured parliament, which held its two short sessions in 1685, though in a great measure owing to the fickleness of the public mind and rapid ascendancy of tory principles during the late years, as well as to a knowledge of the king's severe and vindictive temper, seems to confirm the assertion strongly made at the time within its walls, that many of the members had been unduly returned.[78] The notorious facts indeed, as to the forfeiture of corporations throughout the kingdom, and their regrant under such restrictions as might serve the purpose of the Crown, stand in need of no confirmation. Those who look at the debates and votes of this assembly, their large grant of a permanent revenue to the annual amount of two millions, rendering a frugal prince, in time of peace, entirely out of all dependence on his people, their timid departure from a resolution taken to address the king on the only matter for which they were really solicitous, the enforcement of the penal laws, on a suggestion of his displeasure,[79] their bill entitled, for the preservation of his majesty's person, full of dangerous innovations in the law of treason, especially one most unconstitutional clause, that any one moving in either house of parliament to change the descent of the Crown should incur the penalties of that offence,[80] their supply of £700,000, after the suppression of Monmouth's rebellion, for the support of a standing army,[81] will be inclined to believe that, had James been as zealous for the church of England as his father, he would have succeeded in establishing a power so nearly despotic that neither the privileges of parliament, nor much less those of private men, would have stood in his way. The prejudice which the two last Stuarts had acquired in favour of the Roman religion, so often deplored by thoughtless or insidious writers as one of the worst consequences of their father's ill fortune, is to be accounted rather among the most signal links in the chain of causes through which a gracious Providence has favoured the consolidation of our liberties and welfare. Nothing less than a motive more universally operating than the interests of civil freedom would have stayed the compliant spirit of this unworthy parliament, or rallied, for a time at least, the supporters of indefinite prerogative under a banner they abhorred.
King's intention to repeal the test act.—We know that the king's intention was to obtain the repeal of the habeas corpus act, a law which he reckoned as destructive of monarchy as the test was of the catholic religion.[82] And I see no reason to suppose that he would have failed of this, had he not given alarm to his high-church parliament, by a premature manifestation of his design to fill the civil and military employments with the professors of his own mode of faith.