Page images
[ocr errors]

right which, owing to new and accidental | dressed), the remainder are almost if not circumstances, a part of the community altogether employed in dealing with former have ceased to enjoy. The plain reason Acts. The policy of this country ought for all this is that the constitution of Eng. clearly to be what it always has been in land is a prescriptive constitution which the best periods of our history, which is to has grown up with us, and adapted itself look upon our institutions as the subjects to our wants and wishes. It is not a con- of prudent and honest use, and thankful stitution which has been made by Parlia- enjoyment, and not of captious criticism mentary enactment. It is not the creature and rash experiment. We should be slow of positive law, and never ought to be. to legislate until the necessity for it is It is based on long, constant, immemorial clearly made out; and as soon as that usage, which implies the choice, not of one necessity is established, we should be wise day or of one set of people, but the choice and circumspect in adapting the remedy of a nation; the deliberate choice of suc- to the malady to be cured. cessive ages founded on reason, justified There are very few occasions in which by experience, and confirmed by enjoy. Parliament has thought it necessary to ment. Any attempt to alter what may touch the constitution of the House of be called its primary and most essential Commons; done whatever, until the Recharacteristic would be fatal to its freedom form Act, in which it has been attempted as well as to its power. Experience, not on a large scale to remodel and define our experiment, has hitherto been our guide. representative system. On all such occaMay it never be said, by those at least who sions there was almost invariably a subprotess to be our rulers, that experiment, stantial ground of complaint with reference not experience, is hereafter to be our motto. to which some legislative action was re

And yet there is some danger lest this quired. On all such occasions also the should happen. In these days the House Parliament acted, or at least professed to of Commons is too much regarded as a act, on the acknowledged principles of the mere machine for making laws; whereas Constitution. On none did it hunt after its original and principal functions were new experiments, such as dividing the rather to see that the laws were observed country into electoral districts—apportionthan that the laws are changed ; that is to ing the representatives among the consay, to provide by means of the existing stituencies according to mathematical or Institutions that the rights of the people. arithmetical calculations—basing the franshould be steadily maintained, their in-chise on a personal right, or assuming that terests protected, and their grievances re- every one should be personally represented. dressed. As incident to these functions What Parliament insisted on, was that its the House of Commons is a Legislative as proceedings should not be unduly interwell as a Representative body. But even rupted by the authority of the Crown; the statutes which it makes in that cha- that the existence of the House of Comracter may be chiefly considered as the mons should not be prolonged so as to declaration of laws already existing when make it independent of public opinion; their requirements have been invaded, the that all classes and all interests should there expansion of those laws where the judicial have a voice; that as new classes and new power without the interposition of a higher interests sprang up, the same privileges authority would hesitate to extend them, should be conferred on them which had and the adaptation of those laws to all the been enjoyed by others; that the prefernew wants and exigencies of society. It able way of accomplishing this object was will generally be found that the correction to have recourse to known communities of our laws has been confined to the in- which possess something like a common stances in which the principles upon which tie, rather than to the mere aggregation they are established have either been per- of numbers which have nothing to connect verted or misapplied. If any one will take and bind them together; and that thus, the trouble to examine the huge volumes by removing proved abuses or by supplyof Statutes which are issued yearly under ing ascertained defects, the representathe authority of Parliament he will soon tive body should be the image of the rediscover that, with the exception of those presented,' not in the sense of making it Acts which empower the Crown to carry the mere mirror of popular clamour, pason the government of the country (and sion, or caprice, but in the sense that it which cannot be passed until the House of should be an assembly united with the Commons has had the opportunity of see people by the closest sympathies."* The ing that the wants of the people are at- design was that it should reflect not indeed tended to, and their grievances are re

* Mr. Pitt's phrase. vOL CVI.


every misty cloud that may pass over its found, according to the recital in the 8 disk, but the clear judgment and the ma- Hen. VI., c. 27, that the elections were tured opinions, the property and the in- made by very great, outrageous, and exdustry, the virtues and the intelligence of cessive number of people, of which the a free community.

most part was of small substance or of no Let us recall to our recollection for a value, whereby manslaughter, riots, batfew moments the only occasions in which teries, and divisions among the gentlemen Parliament has substantially interfered as and other people of the same county were regards its own functions or composition, very likely to arise. Therefore it was and let us see how carefully it has adapted enacted* that the knights of the shire its remedies to the actual disorder or to should be chosen by people dwelling and the country's wants.

| resident in the same counties, whereof In the first place, when encroachments every one of them shall have free land or had been made by Edward I. for obtaining tenement, to the value of forty shillings the aids, tasks, and prises given to him by the year at the least, above all charges. aforetime for his wars and other business, There is no other example of any im. Parliament felt that it was necessary to portance in which Parliament interfered prevent such encroachments from grow- , by legislative acts with reference to itselt ing into a custom or bondage to the until we arrive at the end of the reign of people. Wherefore, in his celebrated con- Charles I. The old statute of Edward firmation of the Charter, which he made III. had fallen into desuetude during the in the 21st year of his reign, he granted wars of the Roses, and it had not been for himself and for his heirs that for no acted upon in the reign of the Tudors. business from thenceforth would they take There were long intermissions in the meetsuch aids, tasks, and prises, but by the com- ings of Parliament; the mischiefs and mon consent of all the realm and for the inconveniences' which had been apprecommon profit thereof; saving the ancient hended daily happened.' Wherefore, in aids and prises due and accustomed. This the reign of Charles I., provision was made was simply a declaration of rights coeval for convening Parliament at least once in with the Constitution.

every three years; and though that staIn the next place, when the proceedings tute was repealed after the Restoration at of Parliament were inconveniently inter- the special request of the King, yet, in the rupted by the neglect of the Crown to great declaration of our rights, it was speconvene the two Houses, it was enacted cified as one that, ‘for the redress of all first in the reign of Edward II.,* that ‘for- grievances, and for the amending, strengthasmuch as many people be aggrieved by ening, and preserving of the laws, Parliathe King's ministers against right, in re- ment ought to be held frequently. spect of which grievance no one can recover The next occasion on which Parliament without a cominon Parliament, and se legislated with respect to itself was to li. condly, in the reign of Edward III., that mit the duration of its own existence. • for the redress of divers mischiefs and in- When once chosen under any king's writs, conveniences which daily happened, Par- it was in reality chosen for the life of that liament should be holden every year once, king, unless he should think fit to put an and oftener, if need be. This was simply end to it by dissolution. One Parliament the taking security against an actual abuse. had been convened for eleven years in the It required that Parliaments should be reign of Elizabeth, another for seventeen frequently held, not that the House of years in the reign of Charles II. This evil Commons should be frequently chosen. was strongly felt, for the representatives

The next instance is a very remarkable were placed by the security of a long but one, for it is the only case in which Par- still uncertain tenure beyond the reach of liament has put a limit on the County that public opinion which alone could confranchise. Down to the year A.D. 1429, trol it, and within the influence of the the elections for counties were made in only power upon which it depended for its pleno comitatu, that is to say, in the pre- vital breath. Hence it was that the Trien, sence and with the concurrence of all men nial Bill became the law of the land in of free condition who owed suit and ser- 1694; but it was soon found that the vice in the County Court. But vast con- shortness of the period increased the anifusion is said to have occurred : for it was mosity and expenses of elections, and

weakened the authority of Parliament it* 5 Edward II. c. 29. + 4 Edward III. c. 14. self. There was imminent danger, too, at

| This has been sometimes doubted, but see Hallam’s ‘Middle Ages,' vol. iii., pp. 22, 29.

The better opinion is that stated in the text.

* 8 Henry VI. c. 7.

a particular crisis of our history, that the Constitution was a prescriptive Constituordinary Triennial dissolution would be tion, and had grown out of the peculiar taken advantage of by the adherents of circumstances, occasions, tempers, disposithe Pretender to throw the country into tions, and moral, civil, and social habiconfusion, and endanger at once our Eng- tudes of the people, which declare themlish constitution and our Protestant faith. selves only in a long space of time. It Therefore the Septennial Act was passed. was a vestment which had accommodated According to the opinion of Mr. Speaker itself to the body. Such is the language of Onslow (no mean judge in such matters as Edmund Burke. We doubt much whether these), “The passing of the Septennial Bill a vestment taken from any other country, formed the era of the emancipation of the even from our Anglo-Saxon brethren on House of Commons from dependence on the other side of the Atlantic, would be so the Crown and the House of Lords.' well suited to the English frame, or the

The next instance in which Parliament peculiar requirements of our political atmointerfered with reference to the condition sphere. Let them enjoy their institutions, of its members, was to introduce what may while we enjoy ours. The best parts of their be called a novelty in the Constitution laws they derive from ourselves, and where the requirement that the English repre- they deviate we question the improvement. sentatives should possess an estate of spe- But when we say that the English Concitied value. It is true, indeed, that, in stitution was complete in its inception, and the encroaching times of Henry V. and that this was owing to the fortunate cirHenry VI., residence, property, and gentle cumstance that it was a prescriptive, and birth were attempted to be made the con- not a written Constitution, and that it is, ditions for membership, at least in the therefore, a vestment which has accommocounties. But the feeling of the country dated itself to the principal requirements was so much opposed to this kind of re- of the body politic, we are aware that we striction, that it does not appear to have are entering more or less into the field of ever been acted on; and with regard to controversy. The controversy, however, one of those statutes, it was judicially de- is not so much with those great Statesmen termined,* in 1681, that little regard was who, in all the improvements made in our to be had to it, because the common prac- laws, have endeavoured to keep up a contice of the kingdom had been ever since nexion with the past, by basing alterations to the contrary. In the 9th of Queen on former experience and traditional asAnne, however, under the pretence of sociations, as with that new party which • securing the freedom of Parliament, and is fond of going to the other side of the the independence of its members, but real. | Atlantic for their notions of Government ly for the purpose of checking the efforts and Representative Institutions. By exagof the commercial classes to raise them- gerating the faults and depreciating the adselves into an equality with the territorial vantages of everything they possess, and aristocracy,t a landed qualification of 6001. by magnifying the merits and glossing a-year in counties, and 3001. a-year in bo- over the defects of that which they only roughs, was for the first time required. A see at a distance, they draw a comparison qualitication arising out of personal pro- to the detriment of the one, and in favour perty, I as well as a qualification out of of the other. And yet this new party is landed estates, was atterwards allowed, too often confounded with those from but both were repealed, and the old law whom we are entitled to look for better was restored in 1858.

things, merely because they happen to sit These are the only important instances on the same side of the House, and asin which Parliament has interfered by le- sume for themselves the common name of gislative action, either as regards its own Liberals. The difference, however, befunction or composition, up to the time of tween those who call themselves by that the Reform Act. And what is the infer- name is really enormous. Mr. Disraeli, ence to be drawn from this? Is it not with great justice, described the House of that our Government, as a Representative Commons as now made up of two classes Government, was complete in its theory of Reformers. The one, he said, consisted from its very inception, and that all our of those who would adapt the Constituefforts have been always directed to make tion of 1832 to the England of 1859, and the practice and the theory accord. This would act in the spirit and according to completeness it owed to the fact that the the genius of the existing Institutions.

The other considered that the chief, if
Onslow v. Ripley, King's Bench.
See Hallam, vol. iii. p. 402.

not the sole object of representation was | 1 and 2 Vict. c. 48.

to realize the opinion of the majority.' Their standard, he added, is population. I soccage tenure, and without reference to It is necessary to keep this distinction in their being or not being immediate tenants mind; for it would be absurd to include of the Crown.* In the towns and boroughs and confound two classes of politicians in not only did the freeholder, the burgage the same category, merely because they tenant, and the member of the corporachoose to adopt a common name, and ap- tion possess the electoral franchise, but pear to unfurl a common banner,

every person who became a resident Whatever may have been our opinion householder in a borough, and was capable of the Reform Act at the time it was pro- of paying scot (i.e. his share of local taxaposed, one thing is certain, that the au- tion), and of bearing lot (i.e. of discharging thors of that measure supposed they were in turn the local offices),t was swom and acting according to the acknowledged enrolled at the borough leet and became principles of the Constitution. This was a burgess. In both these respects the the view of the old class of reformers. original building had swerved from its Whether they were justified in that sup- perpendicular. position by the measure itself, or whether With respect to the places entitled to they succeeded in settling the question of representation, the sheriff's, either from parliamentary reform, either permanently negligence or partiality, had omitted or satistactorily, we still take leave to towns that had previously received writs ; doubt. But we cannot deny to them the and the Crown, out of gratitude for serhigh merit of avowing, boldly and dis- vices rendered, or to obtain dependants in tinctly, the only sound principles upon the House of Commons, created new which they could act; nor shall we be boroughs without regard to their wealth slow to give them credit for the manner in or importance. The first of these evils which, by adhering to those principles, ceased with the Tudors; for none of the they endeavoured to make the practice of cities and towns which returned members our Constitution accord better with its at the accession of llenry VIII. intermitoriginal theory. Undoubtedly owing to ted their privilege down to 1832; and in time and accidents the constitution of the the reigns of James and Charles I. thirtyHouse of Commons had declined from its six places which had lost their privilege original foundation, and therefore it de had the right restored to them. But the manded both propping and repair. In the second evil had greatly increased by an first place, according to the true theory undue addition to the smaller boroughs, upon which the Constitution was framed, while no counteracting remedy was offered every part of the country with a detinite by any attempt to include the larger community of interest was entitled to be towns. From the reign of Henry Vill. heard in the great council of the nation; to the accession of Charles I. the House of and in the second place, every person of Commons received an addition of 156 free condition who contributed directly members. In Cornwall alone twelve either to the burdens of the State, or to members were added by Edward VI., four those of the place in which he dwelt, was by Mary, and ten by Elizabeth. The last entitled to have a voice in choosing the occasion on which the Crown thus exMember whom he wished to represent erted its prerogative was in the reign of him. There can hardly be a question Charles II. llad it only been possible to that this was the fact ; for as

renew its exercise by depriving those Parliament assumed its present shape the places which had fallen into decay of the writs of the Crown required two knights right to return members, while it transferto be returned for each county or shire, red that right to the flourishing comand 'two burgesses for every city or munities which had since sprung up, the borough within the same.

There was

reason alleged for a great portion of the therefore, at that time, no part of the Reform Act would never have arisen. country which had a known community of Next as to the franchise, If other interests without its representative. At kinds of property (besides the freehold) the same time also there was no man of which was the subject of local as well as free condition without his vote, if he con- imperial taxation, bad not been subsetributed any thing to the direct burdens quently brought into existence, the county either of the State or of the place in which tranchise might reason

sonably have rested on he dwelt. In the counties the knights its original basis. But that was not so. were elected down to the reign of Henry Copyholders and leaseholders had acquired VI. by all the freeholders who did suit

* See Creasy's little work on the Rise and and service in the county courts, without

Progress of the Constitution,' p. 193. regard to their holding by military or

+ Creasy, p. 261.



substantial rights of property which were practical grievance forty-two new boroughs not recognised or even known in the were created, twenty-two of' which return earlier periods of our history. In the two members and ten return one member cities, towns, and boroughs, the corpora- each, including in the country at large tions themselves, as well as the Crown, had such places as Manchester, Leeds, Birmade encroachments on the electoral fran- mingham, Sheffield, Sunderland, Wolverchise by limiting it in such a manner as to hampton, Devonport, Bolton, Bradford, answer better their own ends than the Blackburn, Halifax, Stroud, Macclesfield, public good. The corporations, acting by Oldham, Stockport, Stoke-upon-Trent, Ashtheir corporate seal, and as an aggregate ton-under-Lyne, Bury, Didley, Frome, body, monopolized anthority wherever Gateshead, Huddersfield, Whitehaven, they could, retained that authority among Whitby; and in the metropolis and its a small number of persons, and exercised adjacent districts Marylebone, Lambeth, the power of selecting burgesses from Greenwich, and the Tower Hamlets. In those who were non-residents, often to the addition to this, and paruly as a counterexclusion of the great body of the inhabi- poise to the large influence which was thus tants who had property in the place. The acquired by the town constituencies, the Crown at the same time began to grant county members were increased from 95 Charters of Incorporation, with clauses* to 159. To remedy the actual injustice, which gave exclusive powers to certain copyholders and leaseholders, with speciofficers or to certain select bodies. Thus tied interests, were admitted for the first the electoral as well as the municipal sys- time to the county franchise, while the tem had widely declined in most of our occupation of a house and premises of 101. boroughs from its original state; and it annual value, with other conditions as to cannot be doubted that the restoration of registry, residence, and the payment of its primitive characteristics, at the time of rates and assessed taxes, was made to conthe Reform Act, was one of the main stitute the main foundation upon which objects contemplated by its authors. This the borough tranchise has since rested. is clear, both from the preamble of the It can hardly be denied, in point of Statute, and from the language which the principle, that this was a restoration rather King himself was recommended to use in than an alteration of our representative his speech from the throne.

But, without renewing those Now, however much politicians or par- tierce controversies which naturally took ties may be inclined to differ with reference place in the discussion of such a measure, to the Act, either as regards its necessity it may be questioned whether this princior expediency, or as regards the particular ple was carried into operation in the manmode in which the intentions of its authors ner which was best calculated to bring the were reduced into practice, no one can theory and practice of the Constitution entertain a moment's doubt as to what into harmony with each other. It may be their objects were, nor can he disapprove questioned, for example, whether it would of the avowed principles upon which it not have been wiser, both in the creation was sought to carry them into effect. of new, and in the extension of the area There was a practical grievance and an of the old boroughs, to make them idenactual injustice. The practical grievance tical with some distinct community of was the non-representation of those large interest ; so that their members should manufacturing and commercial towns, have been the representatives of known which had grown into a mighty existence societies, where the inhabitants were since the Crown had exercised the power bound and connected together by someof creating any new boroughs. The actual thing like a common tie, instead of being injustice was the exclusion of many per- what they are now in too many instances sons from the exercise of the franchise ! -the representatives of a population who by their position, intelligence, and ( rather than the representatives of a peoindependence were justly entitled to it; ple. Ilad this been done, we should not and ihis wrong was occasioned either by have heard that nousense talked at public the encroachments made through the close meetings which ignorantly assumes that corporations and Royal Charters, or by the mere aggregation of numbers is the the omission to extend the privilege to people, or that the people is the particular those new kinds of property which had assemblage which the orator addresses, or become as important in the course of time that the people can mean anything else as the original freehold. To remedy the than the whole collective body of the

nation in its fullest sense, or, in its more See Creasy, p. 263.

limited sense, those communities within


« PreviousContinue »