Constitutional History of England, Henry Vii to George Ii. Volume 3 of 3

Volume Three

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"CONSIDER HISTORY WITH THE BEGINNINGS OF IT STRETCHING DIMLY INTO THE REMOTE TIME; EMERGING DARKLY OUT OF THE MYSTERIOUS ETERNITY: THE TRUE EPIC POEM AND UNIVERSAL DIVINE SCRIPTURE."

CARLYLE

CONSTITUTIONAL HISTORY OF ENGLAND HENRY VII TO GEORGE II.

BY HENRY HALLAM: VOL. 3

LONDON: PUBLISHED by J. M. DENT & SONS LTD AND IN NEW YORK BY E. P. DUTTON & CO

CONTENTS

CHAPTER XIII. On the State of the Constitution Under Charles Ii.

ON THE STATE OF THE CONSTITUTION UNDER CHARLES II.

Effect of the Press -- Restrictions upon it before and after the Restoration -- Licensing Acts -- Political Writings checked by the Judges -- Instances of illegal Proclamations not numerous -- Juries fined for Verdicts -- Question of their Right to return a General Verdict -- Habeas Corpus Act passed -- Differences between Lords and Commons -- Judicial Powers of the Lords historically traced -- Their Pretensions about the Time of the Restoration -- Resistance made by the Commons -- Dispute about their original Jurisdiction -- And that in Appeals from Courts of Equity -- Question of the exclusive Right of the Commons as to Money-bills -- Its History -- The Right extended farther -- State of the Upper House under the Tudors and Stuarts -- Augmentation of the Temporal Lords -- State of the Commons -- Increase of their Members -- Question as to Rights of Election -- Four different Theories as to the Original Principle -- Their Probability considered Page 1

CHAPTER XIV. The Reign of James Ii.

THE REIGN OF JAMES II.

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 Parliament -- Dispensing 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 Malcontents to Prince of Orange -- Declaration for Liberty of Conscience -- Addresses 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 Consequences -- Proceedings of the Convention -- Ended by the Elevation of William and Mary to the Throne Page 43

CHAPTER XV. On the Reign of William Iii.

ON THE REIGN OF WILLIAM III.

Declaration of Rights -- Bill of Rights -- Military Force without Consent declared illegal -- Discontent with the new Government -- its Causes -- Incompatibility of the Revolution with received Principles -- Character and Errors of William -- Jealousy of the Whigs -- Bill of Indemnity -- Bill for Restoring Corporations -- Settlement of the Revenue -- Appropriation of Supplies -- Dissatisfaction of the King -- No Republican Party in Existence -- William employs Tories in Ministry -- Intrigues with the late King -- Schemes for his Restoration -- Attainder of Sir John Fenwick -- Ill Success of the War -- Its Expenses -- Treaty of Ryswick -- Jealousy of the Commons -- Army reduced -- Irish Forfeitures resumed -- Parliamentary Enquiries -- Treaties of Partition -- Improvements in Constitution under William -- Bill for Triennial Parliaments -- Law of Treason -- Statute of Edward III. -- Its constructive Interpretation -- Statute of William III. -- Liberty of the Press -- Law of Libel -- Religious Toleration -- Attempt at Comprehension -- Schism of the Non-jurors -- Laws against Roman Catholics -- Act of Settlement -- Limitations of Prerogative contained in it -- Privy Council superseded by a Cabinet -- Exclusion of Placemen and Pensioners from Parliament -- Independence of Judges -- Oath of Abjuration Page 90

CHAPTER XVI. On the State of the Constitution in the Reigns of Anne, George

ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE, GEORGE I., AND GEORGE II.

Termination of Contest between the Crown and Parliament -- Distinctive Principles of Whigs and Tories -- Changes effected in these by Circumstances -- Impeachment of Sacheverel displays them again -- Revolutions in the Ministry under Anne -- War of the Succession -- Treaty of Peace broken off -- Renewed again by the Tory Government -- Arguments for and against the Treaty of Utrecht -- The Negotiation mismanaged -- Intrigues of the Jacobites -- Some of the Ministers engage in them -- Just alarm for the Hanover Succession -- Accession of George I. -- Whigs come into Power -- Great Disaffection in the Kingdom -- Impeachment of Tory Ministers -- Bill for septennial Parliaments -- Peerage Bill -- Jacobitism among the Clergy -- Convocation -- Its Encroachments -- Hoadley -- Convocation no longer suffered to sit -- Infringements of the Toleration by Statutes under Anne -- They are repealed by the Whigs -- Principles of Toleration fully established -- Banishment of Atterbury -- Decline of the Jacobites -- Prejudices against the reigning Family -- Jealousy of the Crown -- Changes in the Constitution whereon it was founded -- Permanent military Force -- Apprehensions from it -- Establishment of Militia -- Influence over Parliament by Places and Pensions -- Attempts to restrain it -- Place Bill of 1743 -- Secret Corruption -- Commitments for Breach of Privilege -- of Members for Offences -- of Strangers for Offences against Members -- or for Offences against the House -- Kentish Petition of 1701 -- Dispute with Lords about Aylesbury Election -- Proceedings against Mr. Murray in 1751 -- Commitments for Offences unconnected with the House -- Privileges of the House not controllable by Courts of Law -- Danger of stretching this too far -- Extension of Penal Laws -- Diminution of personal Authority of the Crown -- Causes of this -- Party Connections -- Influence of Political Writings -- Publication of Debates -- Increased Influence of the Middle Ranks Page 175

CHAPTER XVII. On the Constitution of Scotland

ON THE CONSTITUTION OF SCOTLAND

Early State of Scotland -- Introduction of Feudal System -- Scots Parliament -- Power of the Aristocracy -- Royal Influence in Parliament -- Judicial Power -- Court of Session -- Reformation -- Power of the Presbyterian Clergy -- Their Attempts at Independence on the State -- Andrew Melville -- Success of James VI. in restraining them -- Establishment of Episcopacy -- Innovations of Charles I. -- Arbitrary Government -- Civil War -- Tyrannical Government of Charles II. -- Reign of James VII. -- Revolution and Establishment of Presbytery -- Reign of William III. -- Act of Security -- Union -- Gradual Decline of Jacobitism Page 266

CHAPTER XVIII. On the Constitution of Ireland

ON THE CONSTITUTION OF IRELAND

Ancient State of Ireland -- Its Kingdoms and Chieftainships -- Law of Tanistry and Gavel-kind -- Rude State of Society -- Invasion of Henry II. -- Acquisitions of English Barons -- Forms of English Constitution established -- Exclusion of Native Irish from them -- Degeneracy of English Settlers -- Parliament of Ireland -- Disorderly State of the Island -- The Irish regain part of their Territories -- English Law confined to the Pale -- Poyning's Law -- Royal Authority revives under Henry VIII. -- Resistance of Irish to Act of Supremacy -- Protestant Church established by Elizabeth -- Effects of this Measure -- Rebellions of her Reign -- Opposition in Parliament -- Arbitrary Proceedings of Sir Henry Sidney -- James I. -- Laws against Catholics enforced -- English Law established throughout Ireland -- Settlements of English in Munster, Ulster, and other Parts -- Injustice attending them -- Constitution of Irish Parliament -- Charles I. promises Graces to the Irish -- Does not confirm them -- Administration of Strafford -- Rebellion of 1641 -- Subjugation of Irish by Cromwell -- Restoration of Charles II. -- Act of Settlement -- Hopes of Catholics under Charles and James -- War of 1689, and final Reduction of Ireland -- Penal Laws against Catholics -- Dependence of Irish on English Parliament -- Growth of a Patriotic Party in 1753 Page 299

CONSTITUTIONAL HISTORY OF ENGLAND

FROM HENRY VII. TO GEORGE II.

CHAPTER XIII. On the State of the Constitution Under Charles Ii.

ON THE STATE OF THE CONSTITUTION UNDER CHARLES II.

It may seem rather an extraordinary position, after the last chapters, yet is strictly true, that the fundamental privileges of the subject were less invaded, the prerogative swerved into fewer excesses, during the reign of Charles II. than perhaps in any former period of equal length. Thanks to the patriot energies of Selden and Eliot, of Pym and Hampden, the constitutional boundaries of royal power had been so well established that no minister was daring enough to attempt any flagrant and general violation of them. The frequent session of parliament, and its high estimation of its own privileges, furnished a security against illegal taxation. Nothing of this sort has been imputed to the government of Charles, the first King of England, perhaps, whose reign was wholly free from such a charge. And as the nation happily escaped the attempts that were made after the restoration, to revive the star-chamber and high-commission courts, there was no means of chastising political delinquencies, except through the regular tribunals of justice, and through the verdict of a jury. Ill as the one were often constituted, and submissive as the other might often be found, they afforded something more of a guarantee, were it only by the publicity of their proceedings, than the dark and silent divan of courtiers and prelates who sat in judgment under the two former kings. Though the bench was frequently subservient, the bar contained high-spirited advocates, whose firm defence of their clients the judges often reproved, but no longer affected to punish. The press, above all, was in continual service. An eagerness to peruse cheap and ephemeral tracts on all subjects of passing interest had prevailed ever since the reformation. These had been extraordinarily multiplied from the meeting of the long parliament. Some thousand pamphlets of different descriptions, written between that time and the restoration, may be found in the British Museum; and no collection can be supposed to be perfect. It would have required the summary process and stern severity of the court of star-chamber to repress this torrent, or reduce it to those bounds which a government is apt to consider as secure. But the measures taken with this view under Charles II. require to be distinctly noticed.

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