Chap 9-12 :The English Government

Chap 9: the English Parliament

  • We shall next show:
    • how each person got a share in the government
    • what share of it was allotted to each of them.
  • Every person who had an estate great or small, had a right:
    • to sit [41] in the king’s court, and
    • to consult and advise with him about public matters.
  • In the reign of William Rufus 700 sat in parliament.
    • In Henry III’s time, it was enacted that the smaller barons, who could not afford to attend in parliament, should send a representative.
    • These representatives were considered as lords.
    • They sat in the same house with them.
  • In the same manner, boroughs came to have representatives in parliament, because they themselves became opulent and powerful.
    • The king found it his interest to give them some weight to lessen the authority of the peers.
  • It became necessary to have their consent as well as that of the barons before any law was passed.
  • These representatives of the boroughs sat in a house by themselves.
  • The smaller barons soon joined them.
    • They were:
      • far from the level of the great lords with whom they sat, and
      • not much superior to the commons.
  • The king’s revenues then were insufficient for the rising government expenses.
    • His revenue consisted chiefly in
      1. The royal demesnes
      2. Knights’ services
      3. Feudal emoluments such as wardships
      4. Fines, compositions for crimes, etc.
      5. All ownerless goods
  • When joined, the two bodies of the commoners made a very considerable figure.
    • Most of the subsidies came from them.
  • The king excused the smaller barons from a constant attendance.
    • He called [42] them as he pleased.
    • When he called them, he issued a writ summoning them.
    • This became the origin of creating peers by writ or patent, which is the only way of doing it at present.

 

Chap 10: How the English Government became Absolute

  • We have shown how the House of Commons became considerable.
  • We shall next show how the nobility’s power decreased and the government turned arbitrary.

 

  • In all the European courts, the nobility’s power declined from the improvements in arts and commerce.
    • When a man could spend his fortune in domestic luxury, he was obliged to dismiss his retainers.
  • By their ancient rustic hospitality they could more easily maintain 1000 retainers than at present lodge one lord for a night.
    • Richard, Earl of Warwick was styled Make-King.
    • He maintained 40,000 people everyday besides tenants.
    • But when luxury took place he was unable to do this.
  • Thus, the nobility’s power was diminished before the House of Commons had established its authority.
    • Thus, the king became arbitrary.
    • Under the House of Tudor:
      • the government was quite arbitrary.
      • the nobility were ruined, and
      • the boroughs lost their power.

 

  • It might be expected that the sovereign also should have lost his authority by the improvement of arts and commerce.
    • But a little attention will convince us that the case must have been quite opposite.
  • A man which has 40,000 pounds a year, while no other body [43] can spend above 100, cannot be affected by the increase of luxury.
    • This is precisely the king’s case.
  • He has 1 million.
    • While none of his subjects can spend above 40,000 pounds.
    • Therefore, he can only spend it by maintaining many people.
  • Therefore, luxury must sink the nobility’s authority.
    • His estates are small in proportion to the king’s estates, which continues unaffected.
    • The king’s power becomes absolute.
  • This was the case in most European nations.
    • Yet in Germany, it was quite different.
      • Its monarchy was elective.
      • Consequently, it never could have so much authority.
      • Germany is much larger than any other in Europe.
      • At the dissolution of the feudal government, the nobility got more fortunes than the rest.
      • Thus, their estates rose so high above those that were immediately below them.
      • that it was impossible for them to spend them in luxury, and therefore they were able to keep a considerable number of retainers.
      • Thus in Germany the power of the nobility was preserved, while in England it was utterly destroyed, and the king rendered absolute.

 

Chap 11: How Liberty was restored

  • We have now shown how the government of England turned absolute: we shall next consider how liberty was restored, and what security the British have for the possession of it.

 

  • The act of Henry VII allowing the nobility to dispose of their estates had already placed them entirely on a level with the commons.
    • Elizabeth always affected [44] popularity.
      • She was continually unwilling to impose taxes on her subjects.
      • To supply her exigencies, she sold the royal demesnes, as she knew that none of her offspring was to succeed her.
      • Her successors therefore, standing in need of frequent supplies, were obliged to make application to parliaments.
  • The Commons were now become very considerable.
    • They represented the whole body of the people.
    • They knew the king could not want, they never granted him anything without in some degree infringing his privileges.
    • At one time, they obtained freedom of speech.
    • At another time, they got it enacted that their concurrence should be necessary to every law.
  • Because of his urgent necessities, the king was forced to grant whatever they asked.
    • Thus, the parliament’s authority established itself.
  • After the accession of James I, Britain had a peculiar advantage of being bounded by the sea.
    • It did not need a standing army.
    • Consequently, the king had no power to overawe people or parliament.
  • The 1,200,000 pounds a year which was settled upon the king at that time might have secured his independency, had not the bad economy of Charles II rendered him as indigent as any of his predecessors.
    • His successor was still more dependent.
    • He was forced to quit the throne and the kingdom.
  • This brought in a new family which totally depended on taxes, because the royal demesnes were entirely alienated.
    • They were obliged to court the people for taxes.
  • Ever since,
  • The king’s revenue became much greater than it was before.
    • Ever since, it has depended so much on parliament’s concurrence that it can never endanger the nation’s liberty. [45]
  • The revenues at present consist chiefly of three branches:
    1. The civil list
      • This is entirely consumed in the royal family’s maintenance.
      • It can give the king no influence, nor hurt the subject’s liberty.
    2. The annual land and malt taxes.
      • These depend entirely on the parliament.
    3. The funds mortgaged for paying off the public debts.
      • Examples are taxes on salt, beer, malt, etc., levied by the officers of custom and excise.
      • These cannot be touched by the king.
      • These are paid to the court of exchequer.
        • The exchequer is generally managed by people of interest and integrity.
        • They have their offices for life and are quite independent of the king.
        • They can pay only to those appointed by parliament.
        • They must have the discharge of the public creditor.
  • The surplus of the mortgages goes into the ‘sinking fund’ for paying the public debt.
    • This secures the government in the present family.
    • If a revolution were to happen, the public creditors, who are men of interest, would lose both principal and interest.
  • Thus, the nation is quite secure in the management of the public revenue.
    • In this way, a rational system of liberty has been introduced into Britain.
  • The parliament consists of about 200 peers and 500 commoners.
    • The Commons manages all public affairs.
    • No money bill can take its rise except in that House.
  • Here is a happy mixture of all the different forms of government properly restrained, and a perfect security to liberty and property.

 

  • There are still some other securities to liberty.
    1. The appointed judges are fixed for life and quite independent of the king.
    2. The[46]  king’s ministers are liable to impeachment by the House of Commons for maladministration.
      • The king cannot pardon them.
    3. The Habeas Corpus Act:
      • restrains the arbitrary measures of the king to detain a person in prison as he pleased.
      • makes any judge incapable of any office if he refuses to try a prisoner within 40 days.
    4. The method of election and placing the power of judging on all elections into the hands of the Commons.
  • All these established customs make it impossible for the king to attempt anything absolute.

 

  • The establishment of the courts of justice is another security to liberty.
    • We shall consider their origin, history, and present state.

 

Chap 12: the English Courts of Justice

  • In England and all of Europe after the feudal law was introduced, the kingdom was governed and justice administered in the same way as a baron in his jurisdiction.
    • He was a steward who managed all affairs in the lord’s county
      • The grand justiciary managed all justice in the kingdom.
    • He appointed sheriffs and other inferior officers.
    • He was himself a great lord.
    • He became as powerful as the king in every country except England.
      • Edward I saw the danger and got it prevented.
  • All kinds of law, criminal or civil, were determined by the justiciary or the king’s court.
    • It always attended the king.
    • Those delays and adjournments in civil suits to which this court [47] always attending the king must have been liable, gave occasion for separating common causes from the king’s court, and fixing for them at Westminster a court of common pleas.
  • Criminal causes have always a more speedy resolution.
    • One would indeed think that when a person’s life is at stake, the debate should be longer than in any other case.
    • But resentment is roused in these cases and precipitates to punish.
  • It is a matter of no moment to the spectator how a trifling matter of cash be determined.
  • but it is by no means so in criminal cases.
  • When common pleas were removed, the criminal and fiscal powers were connected.
  • The power and authority of the great justiciary little diminished.
  • Afterwards, Edward I divided the business of the justiciary into three different courts:
    1. The court of king’s bench
    2. The court of exchequer
    3. The court of common pleas

 

  • In the last, all civil suits were tried.
    • In the first all criminal ones, and to it lay the appeal from the court of common pleas.
  • It was called king’s bench because the king then frequently sat on it.
    • This cannot be done now since it is improper that the king should judge of breaches of the king’s peace.
  • The court of exchequer judged in all affairs between the king and his subjects.
    • The debts due by either of them to the other, and whatever regarded the revenue.
  • The court of chancery was originally no court at all.
  • The chancellor was no more than a keeper of briefs or writs according to which justice was done.
  • We shall now consider what caused the keeping of these briefs.

 

  • Edward I abolished the power of the grand justiciary.
    • He employed mean persons to be judges, generally clergymen. [48]
    • Their jurisdictions would be exercised very precariously.
    • In criminal and civil cases, they interposed with hesitation.
    • In criminal cases, they were mediators.
    • In civil cases, they were arbitrators.
    • They were unwilling to give justice in cases where they had no precedent from the court of justiciary.
  • On this account, all the briefs by which the court of justiciary determined were kept.
    • To keep these seems to have been originally the office of chancellor.
  • If a person had a lawsuit, he went to the clerk of the court of chancery.
    • The clerk examined the briefs.
    • If he found one that comprehended your case, justice was done accordingly.
    • But if one could not be found, you could have no justice.
  • Thus, the chancellor was not a judge originally.
  • In Scotland, the office of the English chancellor is lodged in the court of session.
  • In England, a brief was sent from the chancellor to the sheriff by which he was obliged to appear before the king’s judges.
  • Judges then, from the irregularity and inaccuracy of their proceedings, gave great jealousy to the king.
  • On this account, many severe sentences went out against them.
    • £10,000 was once levied from the judges on account of corruption.
  • They were therefore tied down strictly to the chancery briefs.
    • They were always bound by their records so that they could not be amended.
    • They could not even correct wrongly-spelled words.
  • This precision still remains in some cases where not taken away by the statutes of amendment.
    • A mere orthographical error has had no effect in many cases .
  • The judges were therefore tied down to the precise words of the brief, or if there was a statute, to the words of it.
    • This was the origin and jurisdiction of the court of chancery.

 

[49]

  • During the improvement of the law of England, rivalships arose among the several courts.
  • We shall show:
    • how each of them began to extend its power and encroach on the privileges of another, and
    • how the court of chancery increased its influence.
  • The court of king’s bench judged criminal causes and every breach of the king’s peace.
    • It was the first that assumed immediately, and previously to an appeal, to judge in civil causes, and
    • to encroach on the jurisdiction of the court of common pleas, by what is called a writ of error, that is, they supposed the person to be guilty of a trespass.
  • For example, when a man owed £10 and did not come to pay it, an order went out from the king’s bench to examine him.
    • If he intended to conceal himself, they punished him.
  • Presently, an action on contract can come immediately before the king’s bench.
    • In this way, this court extended its power.
    • Being supreme over all, none could encroach on it.

 

  • The court of exchequer brought in civil causes to be tried immediately by them in the following way:
    • Suppose a man owed money to the king.
    • It is the court’s business to take care of it.
    • The man cannot pay unless his debtors first pay him.
    • The court took upon them to sue this other man by the quo minus, that is, by what he is rendered less able to pay the king.
  • The king had many debts.
    • The profits of the judges arose from sentence money, which depended on the court’s business.
    • They eagerly grasped at this extension of their power.
  • All the courts tried to encourage prosecutors to come before them through the speed of their decisions and accuracy of their proceedings.

 

[50]

  • We now consider how the chancellor attained his equitable jurisdiction.
  • The improvement of arts and commerce created many lawsuits unheard of before.
    • People suffered a great deal by the imperfections of law.
  • Edward III found that there were a great many injuries to which no brief nor court statute extended.
    • Therefore, the parliament allowed that if a person applied to the clerk of chancery and found there was no brief that could give him any remedy, the clerk should look for some briefs of a similar nature.
      • Out of them, he would compose a new brief by which the complainer might have redress.
      • In this way, the chancery prescribed rules to the other courts.
  • But they appointed the briefs and manner of proceeding.
    • This was putting an end to the affair.
    • For there was no occasion to go to any other court.
    • The chancery got these affairs into its own hands.
  • There could be no appeal brought from the courts of king’s bench or of common pleas to that of chancery, but they applied to it for what the common law could not redress.
  • In this way, the chancellor obtained the power of judging in all cases of equity.
    • and is applied to in the greater part of civil cases, the chief of which are, first, the specific performance of contracts.
  • By the common law, if a person was bound by contract to deliver a piece of ground, and afterwards refused to do it, he was only obliged to pay damages, but not to perform it specifically.
  • The chancery was now considered as a court of conscience.
    • It enjoined the specific performance of it.
  • Secondly, the chancery gave redress for all incests and frauds in trust when the common law could not.
  • The leaving of lands to the church deprived the king of the emoluments arising from [51] them, an act was passed against it.
  • The clergy ordered that they should be left to certain persons who would dispose of them for the benefit of the church.
  • If they did not perform it, then it was a fraud in trust.
  • The chancellor allowed the bishop to see it done.
  • Similarly, when persons in the state of affairs at that time were obliged to alienate their estates to persons that had no concern in them, the chancellor caused them to be restored.
  • Wills, legacies, and things of this sort also fell under the equitable decision of the chancellor.

 

  • It will be proper when we are treating of courts to inquire into the origin of juries.
  • In the beginning of the allodial government, the several courts had arrived at a very small degree of improvement.
    • They did not have the experience to examine matters thoroughly.
    • when any person was brought before them on an action depending on his oath, he was obliged to bring 12 compurgators to swear that the oath was just.
  • There are remains of this at present in actions of debt, where, if the person can bring in a certain number of persons to swear that his oath is just, he gains the suit.
  • This way of trying was one of the great causes of judicial combat.
  • A nobleman who was injured by perjured fellows, would rather choose to combat it in the field and appeal to God’s judgement than leave his cause to them.
  • Henry II first instituted:
    • that the sheriff and a certain number of persons who had opportunity to be best acquainted with the crime should have the whole affair laid before them, and
    • that the person should be judged by their sentence.
  • The law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries.
  • They who are chosen must be near the place where the crime was committed that they may have an opportunity of being acquainted with it.
  • A great part of the jury may [52] be laid aside by the panel.
    • He can:
      • lay aside 30 of them
      • challenge them:
        • per capita, that is, any single juryman, or
        • any number of them, if he suspect the sheriff of partiality.
  • There may be many small causes for suspicion of partiality.
    • The court judges the relevancy of these.
  • Nothing can be a greater security for life, liberty, and property than this institution.
    • The judges are:
      • men of integrity and
      • quite independent
        • They hold their offices for life but are tied down by the law.
    • The jurymen are your neighbours who are to judge of a fact upon which your life depends.
      • They can also be laid aside for several reasons.

 

  • The laws of England with regard to juries are only defective in one point, in which they differ from the laws of Scotland.
    • In England the whole jury must be unanimous.
    • This renders the office of a juryman a very disagreeable service.
  • A case may appear to you more clear than it does to me.
    • It may really be different from what it appears to either of us.
    • Yet we need to agree.
    • As a result, one of us should swear contrary to our conscience.
  • In criminal causes, there is little danger.
    • People are generally disposed to favour innocence and to preserve life.
  • But in civil cases, people are not so much troubled.
    • They are not so much disposed to favour.
    • Many of them are exceedingly doubtful.
  • People of fashion are not fond of meddling in a jury attended with such inconveniences.
    • Therefore, only the meaner sort of people attend the judge.
  • A great man would not choose to be so often called and returned, and perhaps treated in such a manner as no gentleman would choose to be.
  • In this case, the law providing for security has done too much.
  • In Scotland, unanimity is not required.
    • The service is not so disagreeable.
  • Even if a person differs from the majority, he may stand by his opinion.
    • He is not forced to comply.
    • The [53] people of the highest rank are willing to be jurors.
  • In the actions which come before the court of chancery, no jury is required.
    • The court of session in Scotland has taken them away in civil causes.

 

  • Besides the courts mentioned, there were others created by the king’s patent.
  • Henry VIII created three.
    1. The court of high commission sat upon ecclesiastics.
    2. The court of star chamber takes in anything less than death.
    3. The court of wardship took care of the king’s interest in these emoluments.
      1. This last was taken away by Charles II.
      2. He accepted a sum for the whole.
  • Nowadays, the king cannot create a court without parliament’s consent.
    • In no other country of Europe is the law so accurate as in England, because it has not been of so long standing.
  • The parliament of Paris was only created around the time of Henry VIII of England.
  • The British parliament consists of many people of great dignity.
    • All new courts:
      • disdain to follow the rules formerly established.
      • are a great evil, because their power at first is not precisely determined.
        • Therefore, their decisions must be loose and inaccurate.

 

  • We have considered:
    • the origin of government
      1. Among a nation of savages
      2. Among a nation of shepherds
    • the government of small clans with chieftains
    • how aristocracies arose
    • the fall of conquering or defensive republics
    • the different forms of government that arose in Europe after the dissolution of arbitrary government.

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