XIII. Constitution CHAP. occurred, in favour of a restrained right of suffrage. There seems, on the whole, great reason to be of opinion that where a Charles II. 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 any thing 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, Constitution which renders the last determination of the house of commons CHAP. XIII. conclusive as to the right of election *. But this enactment confirmed many decisions that cannot be reconciled with any sensi- Charles II. ble 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. *This clause in an act imposing severe penalties on bribery was inserted by the house of lords with the insidious design of causing the rejection of the whole bill, if the commons, as might be expected, should resent such an interference with their privileges. The ministry accordingly endea voured to excite this sentiment; but those CHAPTER XIV. THE REIGN OF JAMES II. CHAP. Designs of the King-Parliament of 1685-King's Intention to repeal the Test Act-Deceived as to the Dispositions of his Subjects-Prorogation of ParliamentDispensing Power confirmed by the Judges-Ecclesiastical Commission—King's Scheme of establishing Popery-Dismissal of Lord Rochester-Prince of Orange alarmed-Plan of setting the Princess aside-Rejected by the King-Overtures of the Malecontents to Prince of Orange-Declaration for Liberty of ConscienceAddresses in favour of it-New modelling of the Corporations-Affair of Magdalen College-Infatuation of the King-His Coldness towards Louis-Invitation signed to the Prince of Orange-Birth of Prince of Wales-Justice and Necessity of the Revolution-Favourable Circumstances attending it-Its salutary ConsequencesProceedings of the Convention-Ended by the Elevation of William and Mary to the Throne. THE great question that has been brought forward at the end of the last chapter, concerning the right and usage of election in James II. 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 THE CONSTITUTIONAL HISTORY OF ENGLAND 393 XIV. their common property and lucrative privileges, what was called a CHAP. loyal parliament could be procured, the business of government, both as to supply and enactment or repeal of laws, would be James II. 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. 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 *. 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 impolite 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; and Barillon mentions se *Fox, Appendix, p. 8. + "The legal method," says Burnet, "was to have made entries, and to have taken bonds for those duties to be paid when the VOL. II. parliament should meet and renew the grant." 3 E CHAP. veral times, that he was resolved to continue in the possession of was equally decided not to accept it for a limited time. This, as any exer 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 †. The notorious facts subjoins, that it was the proposal of lord- The king was thanked in several ad- and presented by sir Humphrey Mackworth. Life of James, vol. ii. p. 17. The former was active as a lawyer in all the worst measures of these two reigns. Yet, after the revolution, they both became tory patriots, and jealous assertors of freedom against the government of William III. Barillon, however, takes notice, that this illegal continuance of the revenue produced much discontent. Fox's Appendix, 39; and Rochester told him, that North and Halifax would have urged the king to call a parliament, in order to settle the revenue on a lawful basis, if that resolution had not been taken by himself. Id. p. 20. The king thought it necessary to apologise to Barillon for convoking parliament. Id. p. 18. Dalrymple, p. 100. * Dalrymple, p. 142. The king alludes to this possibility of a limited grant with much resentment and threatening, in his speech on opening the session. tFox, Appendix, p. 93. Lonsdale, p. 5. |