The Commons of 1701, wherein a tory spirit was strongly predominant, by what were deemed its factious delays in voting supplies, and in seconding the measures of the king for the security of Europe, had exasperated all those who saw the nation's safety in vigorous preparations for war, and led at last to the most angry resolution of the Lords, which one house of parliament in a matter not affecting its privileges has ever recorded against the other.[384] The grand jury of Kent, and other freeholders of the county, presented accordingly a petition on the 8th of May 1701, imploring them to turn their loyal addresses into bills of supply (the only phrase in the whole petition that could be construed into disrespect), and to enable his majesty to assist his allies before it should be too late. The tory faction was wrought to fury by this honest remonstrance. They voted that the petition was scandalous, insolent, and seditious, tending to destroy the constitution of parliament, and to subvert the established government of this realm; and ordered that Mr. Colepepper, who had been most forward in presenting the petition, and all others concerned in it, should be taken into custody of the serjeant.[385] Though no attempt was made on this occasion to call the authority of the house into question by habeas corpus or other legal remedy, it was discussed in pamphlets and in general conversation, with little advantage to a power so arbitrary, and so evidently abused in the immediate instance.[386]
A very few years after this high exercise of authority, it was called forth in another case, still more remarkable and even less warrantable. The House of Commons had an undoubted right of determining all disputed returns to the writ of election, and consequently of judging upon the right of every vote. But, as the house could not pretend that it had given this right, or that it was not, like any other franchise, vested in the possessor by a legal title, no pretext of reason or analogy could be set up for denying that it might also come, in an indirect manner at least, before a court of justice, and be judged by the common principles of law. One Ashby, however, a burgess of Aylesbury, having sued the returning officer for refusing his vote; and three judges of the king's bench, against the opinion of Chief-Justice Holt, having determined for different reasons that it did not lie, a writ of error was brought in the House of Lords, when the judgment was reversed. The House of Commons took this up indignantly, and passed various resolutions, asserting their exclusive right to take cognisance of all matters relating to the election of their members. The Lords repelled these by contrary resolutions; That by the known laws of this kingdom, every person having a right to give his vote, and being wilfully denied by the officer who ought to receive it, may maintain an action against such officer to recover damage for the injury; That the contrary assertion is destructive of the property of the subject, and tends to encourage corruption and partiality in returning officers; That the declaring persons guilty of breach of privilege for prosecuting such actions, or for soliciting and pleading in them, is a manifest assuming a power to control the law, and hinder the course of justice, and subject the property of Englishmen to the arbitrary votes of the House of Commons. They ordered a copy of these resolutions to be sent to all the sheriffs, and to be communicated by them to all the boroughs in their respective counties.
A prorogation soon afterwards followed, but served only to give breathing time to the exasperated parties; for it must be observed, that though a sense of dignity and privilege no doubt swelled the majorities in each house, the question was very much involved in the general whig and tory course of politics. But Ashby, during the recess, having proceeded to execution on his judgment, and some other actions having been brought against the returning officer of Aylesbury, the Commons again took it up, and committed the parties to Newgate. They moved the court of king's bench for a habeas corpus; upon the return to which, the judges, except Holt, thought themselves not warranted to set them at liberty against the commitment of the house.[387] It was threatened to bring this by writ of error before the Lords; and, in the disposition of that assembly, it seems probable that they would have inflicted a severe wound on the privileges of the lower house, which must in all probability have turned out a sort of suicide upon their own. But the Commons interposed by resolving to commit to prison the counsel and agents concerned in prosecuting the habeas corpus, and by addressing the queen not to grant a writ of error. The queen properly answered, that as this matter, relating to the course of judicial proceedings, was of the highest consequence, she thought it necessary to weigh very carefully what she should do. The Lords came to some important resolutions: That neither house of parliament hath any power by any vote or declaration to create to themselves any new privilege that is not warranted by the known laws and customs of parliament; That the House of Commons, in committing to Newgate certain persons for prosecuting an action at law, upon pretence that their so doing was contrary to a declaration, a contempt of the jurisdiction, and a breach of the privileges of that house, have assumed to themselves alone a legislative power, by pretending to attribute the force of law to their declaration, have claimed a jurisdiction not warranted by the constitution, and have assumed a new privilege, to which they can show no title by the law and custom of parliament; and have thereby, as far as in them lies, subjected the rights of Englishmen, and the freedom of their persons, to the arbitrary votes of the House of Commons; That every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right to a writ of habeas corpus, in order to obtain his liberty by the due course of law; That for the House of Commons to punish any person for assisting a prisoner to procure such a writ is an attempt of dangerous consequence, and a breach of the statutes provided for the liberty of the subject; That a writ of error is not of grace but of right, and ought not to be denied to the subject when duly applied for, though at the request of either house of parliament.
These vigorous resolutions produced a conference between the houses, which was managed with more temper than might have been expected from the tone taken on both sides. But, neither of them receding in the slightest degree, the Lords addressed the queen, requesting her to issue the writs of error demanded upon the refusal of the king's bench to discharge the parties committed by the House of Commons. The queen answered the same day, that she should have granted the writs of error desired by them, but finding an absolute necessity of putting an immediate end to the session, she was sensible there could have been no further proceeding upon them. The meaning of this could only be, that by a prorogation all commitments by order of the lower house of parliament are determined, so that the parties could stand in no need of a habeas corpus. But a great constitutional question was thus wholly eluded.[388]
We may reckon the proceedings against Mr. Alexander Murray, in 1751, among the instances wherein the House of Commons has been hurried by passion to an undue violence. This gentleman had been active in a contested Westminster election, on an anti-ministerial and perhaps jacobite interest. In the course of an inquiry before the house, founded on a petition against the return, the high-bailiff named Mr. Murray as having insulted him in the execution of his duty. The house resolved to hear Murray by counsel in his defence, and the high-bailiff also by counsel in support of the charge, and ordered the former to give bail for his appearance from time to time. These, especially the last, were innovations on the practice of parliament, and were justly opposed by the more cool-headed men. After hearing witnesses on both sides, it was resolved that Murray should be committed to Newgate, and should receive this sentence upon his knees. This command he steadily refused to obey, and thus drew on himself a storm of wrath at such insolence and audacity. But the times were no more, when the Commons could inflict whippings and pillories on the refractory; and they were forced to content themselves with ordering that no person should be admitted to him in prison, which, on account of his ill-health, they soon afterwards relaxed. The public voice is never favourable to such arbitrary exertions of mere power: at the expiration of the session, Mr. Murray, thus grown from an intriguing jacobite into a confessor of popular liberty, was attended home by a sort of triumphal procession amidst the applause of the people. In the next session he was again committed on the same charge; a proceeding extremely violent and arbitrary.[389]
It has been always deemed a most important and essential privilege of the houses of parliament, that they may punish in this summary manner by commitment all those who disobey their orders to attend as witnesses, or for any purposes of their constitutional duties. No inquiry could go forward before the house at large or its committees, without this power to enforce obedience; especially when the information is to be extracted from public officers against the secret wishes of the court. It is equally necessary (or rather more so, since evidence not being on oath in the lower house, there can be no punishment in the course of law) that the contumacy or prevarication of witnesses should incur a similar penalty. No man would seek to take away this authority from parliament, unless he is either very ignorant of what has occurred in other times and his own, or is a slave in the fetters of some general theory.
But far less can be advanced for several exertions of power on record in the journals, which under the name of privilege must be reckoned by impartial men irregularities and encroachments, capable only at some periods of a kind of apology from the unsettled state of the constitution. The Commons began, in the famous or infamous case of Floyd, to arrogate a power of animadverting upon political offences, which was then wrested from them by the upper house. But in the first parliament of Charles I. they committed Montagu (afterwards the noted semi-popish bishop) to the serjeant, on account of a published book, containing doctrines they did not approve.[390] For this was evidently the main point, though he was also charged with reviling two persons who had petitioned the house, which bore a distant resemblance to a contempt. In the long parliament, even from its commencement, every boundary was swept away; it was sufficient to have displeased the majority by act or word; but no precedents can be derived from a crisis of force struggling against force. If we descend to the reign of William III., it will be easy to discover instances of commitments, laudable in their purpose, but of such doubtful legality and dangerous consequence that no regard to the motive should induce us to justify the precedent. Graham and Burton, the solicitors of the treasury in all the worst state prosecutions under Charles and James, and Jenner, a baron of the exchequer, were committed to the Tower by the council immediately after the king's proclamation, with an intention of proceeding criminally against them. Some months afterwards, the suspension of the habeas corpus, which had taken place by bill, having ceased, they moved the king's bench to admit them to bail; but the House of Commons took this up, and, after a report of a committee as to precedents, put them in custody of the serjeant at arms.[391] On complaints of abuses in victualling the navy, the commissioners of that department were sent for in the serjeant's custody, and only released on bail ten days afterwards.[392] But, without minutely considering the questionable instances of privilege that we may regret to find, I will select one wherein the House of Commons appear to have gone far beyond either the reasonable or customary limits of privilege, and that with very little pretext of public necessity. In the reign of George I., a newspaper called Mist's Journal was notorious as the organ of the jacobite faction. A passage full of the most impudent longings for the Pretender's restoration having been laid before the house, it was resolved, May 28, 1721, "that the said paper is a false, malicious, scandalous, infamous, and traitorous libel, tending to alienate the affections of his majesty's subjects, and to excite the people to sedition and rebellion, with an intention to subvert the present happy establishment, and to introduce popery and arbitrary power." They went on after this resolution to commit the printer Mist to Newgate, and to address the king that the authors and publishers of the libel might be prosecuted.[393] It is to be observed that no violation of privilege either was, or indeed could be alleged as the ground of this commitment; which seems to imply that the house conceived itself to be invested with a general power, at least in all political misdemeanours.
I have not observed any case more recent than this of Mist, wherein any one has been committed on a charge which could not possibly be interpreted on a contempt of the house, or a breach of its privilege. It became however the practice, without previously addressing the king, to direct a prosecution by the attorney-general for offences of a public nature, which the Commons had learned in the course of any inquiry, or which had been formally laid before them.[394] This seems to have been introduced about the beginning of the reign of Anne, and is undoubtedly a far more constitutional course than that of arbitrary punishment by overstraining their privilege. In some instances, libels have been publicly burned by the order of one or other house of parliament.
I have principally adverted to the powers exerted by the lower house of parliament, in punishing those guilty of violating their privileges. It will of course be understood that the Lords are at least equal in authority. In some respects indeed they have gone beyond. I do not mean that they would be supposed at present to have cognisance of any offence whatever, upon which the Commons could not animadvert. Notwithstanding what they claimed in the case of Floyd, the subsequent denial by the Commons, and abandonment by themselves, of any original jurisdiction, must stand in the way of their assuming such authority over misdemeanours, more extensively at least than the Commons, as has been shown, have in some instances exercised it. But, while the latter have, with very few exceptions, and none since the restoration, contented themselves with commitment during the session, the Lords have sometimes imposed fines, and, on some occasions in the reign of George II., as well as later, have adjudged parties to imprisonment for a certain time. In one instance, so late as that reign, they sentenced a man to the pillory; and this had been done several times before. The judgments however of earlier ages give far less credit to the jurisdiction than they take from it. Besides the ever memorable case of Floyd, one John Blount, about the same time (27th Nov. 1621), was sentenced by the Lords to imprisonment and hard labour in Bridewell during life.[395]
Privileges of the house not controllable by courts of law.—It may surprise those who have heard of the happy balance of the English constitution, of the responsibility of every man to the law, and of the security of the subject from all unlimited power, especially as to personal freedom, that this power of awarding punishment at discretion of the houses of parliament is generally reputed to be universal and uncontrollable. This indeed was by no means received at the time when the most violent usurpations under the name of privilege were first made; the power was questioned by the royalist party who became its victims, and, among others, by the gallant Welshman, Judge Jenkins, whom the long parliament had shut up in the Tower. But it has been several times brought into discussion before the ordinary tribunals; and the result has been, that if the power of parliament is not unlimited in right, there is at least no remedy provided against its excesses.
The House of Lords in 1677 committed to the Tower four peers, among whom was the Earl of Shaftesbury, for a high contempt; that is, for calling in question, during a debate, the legal continuance of parliament after a prorogation of more than twelve months. Shaftesbury moved the court of king's bench to release him upon a writ of habeas corpus. But the judges were unanimously of opinion that they had no jurisdiction to inquire into a commitment by the Lords of one of their body, or to discharge the party during the session, even though there might be, as appears to have been the case, such technical informality on the face of the commitment as would be sufficient in an ordinary case to set it aside.[396]
Lord Shaftesbury was at this time in vehement opposition to the court. Without insinuating that this had any effect upon the judges, it is certain that a few years afterwards they were less inclined to magnify the privileges of parliament. Some who had been committed, very wantonly and oppressively, by the Commons in 1680, under the name of abhorrers, brought actions for false imprisonment against Topham, the serjeant-at-arms. In one of these he put in what is called a plea to the jurisdiction, denying the competence of the court of king's bench, inasmuch as the alleged trespass had been done by order of the knights, citizens, and burgesses of parliament. But the judges overruled this plea, and ordered him to plead in bar to the action. We do not find that Topham complied with this; at least judgments appear to have passed against him in these actions.[397] The Commons, after the revolution, entered on the subject, and summoned two of the late judges, Pemberton and Jones, to their bar. Pemberton answered that he remembered little of the case; but if the defendant should plead that he did arrest the plaintiff by order of the house, and should plead that to the jurisdiction of the king's bench, he thought, with submission, he could satisfy the house that such a plea ought to be overruled, and that he took the law to be so very clearly. The house pressed for his reasons, which he rather declined to give. But on a subsequent day he fully admitted that the order of the house was sufficient to take any one into custody, but that it ought to be pleaded in bar, and not to the jurisdiction, which would be of no detriment to the party, nor affect his substantial defence. It did not appear however that he had given any intimation from the bench of so favourable a leaning towards the rights of parliament; and his present language might not uncharitably be ascribed to the change of times. The house resolved that the orders and proceedings of this house being pleaded to the jurisdiction of the court of king's bench, ought not to be overruled; that the judges had been guilty of a breach of privilege, and should be taken into custody.[398]
I have already mentioned that, in the course of the controversy between the two houses on the case of Ashby and White, the Commons had sent some persons to Newgate, for suing the returning officer of Aylesbury in defiance of their resolutions; and that, on their application to the king's bench to be discharged on their habeas corpus, the majority of the judges had refused it. Three judges, Powis, Gould, and Powell, held that the courts of Westminster Hall could have no power to judge of the commitments of the houses of parliament; that they had no means of knowing what were the privileges of the Commons, and consequently could not know their boundaries; that the law and custom of parliament stood on its own basis, and was not to be decided by the general rules of law; that no one had ever been discharged from such a commitment, which was an argument that it could not be done. Holt, the chief justice, on the other hand, maintained that no privilege of parliament could destroy a man's right, such as that of bringing an action for a civil injury; that neither house of parliament could separately dispose of the liberty and property of the people, which could only be done by the whole legislature; that the judges were bound to take notice of the customs of parliament, because they are part of the law of the land, and might as well be learned as any other part of the law. "It is the law," he said, "that gives the queen her prerogative; it is the law gives jurisdiction to the House of Lords, as it is the law limits the jurisdiction of the House of Commons." The eight other judges having been consulted, though not judicially, are stated to have gone along with the majority of the court, in holding that a commitment by either house of parliament was not cognisable at law. But from some of the resolutions of the Lords on this occasion which I have quoted above, it may seem probable that, if a writ of error had been ever heard before them, they would have leaned to the doctrine of Holt, unless indeed withheld by the reflection that a similar principle might easily be extended to themselves.[399]
It does not appear that any commitment for breach of privilege was disputed until the year 1751; when Mr. Alexander Murray, of whom mention has been made, caused himself to be brought before the court of king's bench on a habeas corpus. But the judges were unanimous in refusing to discharge him. "The House of Commons," said Mr. Justice Wright, "is a high court, and it is agreed on all hands that they have power to judge of their own privileges; it need not appear to us what the contempt is for; if it did appear, we could not judge thereof."—"This court," said Mr. Justice Denison, "has no jurisdiction in the present case. We granted the habeas corpus, not knowing what the commitment was; but now it appears to be for a contempt of the privileges of the House of Commons. What the privileges of either house are we do not know; nor need they tell us what the contempt was, because we cannot judge of it; for I must call this court inferior to the Commons with respect to judging of their privileges, and contempts against them." Mr. Justice Foster agreed with the two others, that the house could commit for a contempt, which, he said, "Holt had never denied in such a case as this before them."[400] It would be unnecessary to produce later cases which have occurred since the reign of George II., and elicited still stronger expressions from the judges of their incapacity to take cognisance of what may be done by the Houses of Parliament.
Notwithstanding such imposing authorities, there have not been wanting some who have thought that the doctrine of uncontrollable privilege is both eminently dangerous in a free country, and repugnant to the analogy of our constitution. The manly language of Lord Holt[401] has seemed to rest on better principles of public utility, and even perhaps of positive law. It is not however to be inferred that the right of either house of parliament to commit persons, even not of their own body, to prison, for contempts or breaches of privilege, ought to be called in question. In some cases this authority is as beneficial, and even indispensable, as it is ancient and established. Nor do I by any means pretend that if the warrant of commitment merely recites the party to have been guilty of a contempt or breach of privilege, the truth of such allegation could be examined upon a return to a writ of habeas corpus, any more than in an ordinary case of felony. Whatever injustice may thus be done cannot have redress by any legal means; because the House of Commons (or the Lords, as it may be) are the fit judges of the fact, and must be presumed to have determined it according to right.
But it is a more doubtful question, whether, if they should pronounce an offence to be a breach of privilege, as in the case of the Aylesbury men, which a court of justice should perceive to be clearly none, or if they should commit a man on a charge of misdemeanour, and for no breach of privilege at all, as in the case of Mist the printer, such excesses of jurisdiction might not legally be restrained by the judges. If the resolutions of the Lords in the business of Ashby and White are constitutional and true, neither house of parliament can create to itself any new privilege; a proposition surely so consonant to the rules of English law, which require prescription or statute as the basis for every right, that few will dispute it; and it must be still less lawful to exercise a jurisdiction over misdemeanours, by committing a party who would regularly be only held to bail on such a charge. Of this I am very certain, that if Mist, in the year 1721, had applied for his discharge on a habeas corpus, it would have been far more difficult to have opposed it on the score of precedent or of constitutional right, than it was for the attorney-general of Charles I., nearly one hundred years before, to resist the famous arguments of Selden and Littleton, in the case of the Buckinghamshire gentlemen committed by the council. If a few scattered acts of power can make such precedents as a court of justice must take as its rule, I am sure the decision, neither in this case nor in that of ship-money, was so unconstitutional as we usually suppose: it was by dwelling on all authorities in favour of liberty, and by setting aside those which made against it, that our ancestors overthrew the claims of unbounded prerogative. Nor is this parallel less striking when we look at the tone of implicit obedience, respect, and confidence with which the judges of the eighteenth century have spoken of the houses of parliament, as if their sphere were too low for the cognisance of such a transcendant authority.[402] The same language, almost to the words, was heard from the lips of the Hydes and Berkeleys in the preceding age, in reference to the king and to the privy council. But as, when the spirit of the government was almost wholly monarchical, so since it has turned chiefly to an aristocracy, the courts of justice have been swayed towards the predominant influence, not, in general, by any undue motives, but because it is natural for them to support power, to shun offence, and to shelter themselves behind precedent. They have also sometimes had in view the analogy of parliamentary commitments to their own power of attachment for contempt, which they hold to be equally uncontrollable; a doctrine by no means so dangerous to the subject's liberty, but liable also to no trifling objections.[403]
The consequences of this utter irresponsibility in each of the two houses will appear still more serious, when we advert to the unlimited power of punishment which it draws with it. The Commons indeed do not pretend to imprison beyond the session; but the Lords have imposed fines and definite imprisonment; and attempts to resist these have been unsuccessful.[404] If the matter is to rest upon precedent, or upon what overrides precedent itself, the absolute failure of jurisdiction in the ordinary courts, there seems nothing (decency and discretion excepted) to prevent their repeating the sentences of James I.'s reign, whipping, branding, hard labour for life. Nay, they might order the usher of the black rod to take a man from their bar, and hang him up in the lobby. Such things would not be done, and, being done, would not be endured; but it is much that any sworn ministers of the law should, even by indefinite language, have countenanced the legal possibility of tyrannous power in England. The temper of government itself, in modern times, has generally been mild; and this is probably the best ground of confidence in the discretion of parliament; but popular, that is, numerous bodies, are always prone to excess, both from the reciprocal influences of their passions, and the consciousness of irresponsibility; for which reasons a democracy, that is, the absolute government of the majority, is in general the most tyrannical of any. Public opinion, it is true, in this country, imposes a considerable restraint; yet this check is somewhat less powerful in that branch of the legislature which has gone the farthest in chastising breaches of privilege. I would not be understood, however, to point at any more recent discussions on this subject; were it not, indeed, beyond the limits prescribed to me, it might be shown that the House of Commons, in asserting its jurisdiction, has receded from much of the arbitrary power which it once arrogated, and which some have been disposed to bestow upon it.
IV. It is commonly and justly said that civil liberty is not only consistent with, but in its terms implies, the restrictive limitations of natural liberty which are imposed by law. But, as these are not the less real limitations of liberty, it can hardly be maintained that the subject's condition is not impaired by very numerous restraints upon his will, even without reference to their expediency. The price may be well paid; but it is still a price that it costs some sacrifice to pay. Our statutes have been growing in bulk and multiplicity with the regular session of parliament, and with the new system of government; all abounding with prohibitions and penalties, which every man is presumed to know, but which no man, the judges themselves included, can really know with much exactness. We literally walk amidst the snares and pitfalls of the law. The very doctrine of the more rigid casuists, that men are bound in conscience to observe all the laws of their country, has become impracticable through their complexity and inconvenience; and most of us are content to shift off their penalties in the mala prohibita with as little scruple as some feel in risking those of graver offences. But what more peculiarly belongs to the present subject is the systematic encroachment upon ancient constitutional principles, which has for a long time been made through new enactments, proceeding from the Crown, chiefly in respect to the revenue.[405] These may be traced indeed in the statute-book, at least as high as the restoration, and really began in the arbitrary times of revolution which preceded it. They have, however, been gradually extended along with the public burthens, and as the severity of these has prompted fresh artifices of evasion. It would be curious, but not within the scope of this work, to analyse our immense fiscal law, and to trace the history of its innovations. These consist, partly in taking away the cognisance of offences against the revenue from juries, whose partiality in such cases there was in truth much reason to apprehend, and vesting it either in commissioners of the revenue itself or in magistrates; partly in anomalous and somewhat arbitrary power with regard to the collection; partly in deviations from the established rules of pleading and evidence, by throwing on the accused party in fiscal causes the burthen of proving his innocence, or by superseding the necessity of rigorous proof as to matters wherein it is ordinarily required; and partly in shielding the officers of the Crown, as far as possible, from their responsibility for illegal actions, by permitting special circumstances of justification to be given in evidence without being pleaded, or by throwing impediments of various kinds in the way of the prosecutor, or by subjecting him to unusual costs in the event of defeat.
Extension of penal laws.—These restraints upon personal liberty, and what is worse, these endeavours, as they seem, to prevent the fair administration of justice between the Crown and the subject, have in general, more especially in modern times, excited little regard as they have passed through the houses of parliament. A sad necessity has over-ruled the maxims of ancient law; nor is it my business to censure our fiscal code, but to point out that it is to be counted as a set-off against the advantages of the revolution, and has in fact diminished the freedom and justice which we claim for our polity. And, that its provisions have sometimes gone so far as to give alarm to not very susceptible minds, may be shown from a remarkable debate in the year 1737. A bill having been brought in by the ministers to prevent smuggling, which contained some unusual clauses, it was strongly opposed, among other peers, by Lord Chancellor Talbot himself, of course, in the cabinet, and by Lord Hardwicke, then chief justice, a regularly bred Crown lawyer, and in his whole life disposed to hold very high the authority of government. They objected to a clause subjecting any three persons travelling with arms, to the penalty of transportation, on proof by two witnesses that their intention was to assist in the clandestine landing, or carrying away prohibited or uncustomed goods. "We have in our laws," said one of the opposing lords, "no such thing as a crime by implication, nor can a malicious intention ever be proved by witnesses. Facts only are admitted to be proved, and from those facts the judge and jury are to determine with what intention they were committed; but no judge or jury can ever, by our laws, suppose, much less determine, that an action, in itself innocent or indifferent, was attended with a criminal and malicious intention. Another security for our liberties is, that no subject can be imprisoned unless some felonious and high crime be sworn against him. This, with respect to private men, is the very foundation stone of all our liberties; and, if we remove it, if we but knock off a corner, we may probably overturn the whole fabric. A third guard for our liberties is that right which every subject has, not only to provide himself with arms proper for his defence, but to accustom himself to the use of those arms, and to travel with them whenever he has a mind." But the clause in question, it was contended, was repugnant to all the maxims of free government. No presumption of a crime could be drawn from the mere wearing of arms, an act not only innocent, but highly commendable; and therefore the admitting of witnesses to prove that any of these men were armed, in order to assist in smuggling, would be the admitting of witnesses to prove an intention, which was inconsistent with the whole tenor of our laws.[406] They objected to another provision, subjecting a party against whom information should be given that he intended to assist in smuggling, to imprisonment without bail, though the offence itself were in its nature bailable; to another, which made informations for assault upon officers of the revenue triable in any county of England; and to a yet more startling protection thrown round the same favoured class, that the magistrates should be bound to admit them to bail on charges of killing or wounding any one in the execution of their duty. The bill itself was carried by no great majority; and the provisions subsist at this day, or perhaps have received a further extension.
It will thus appear to every man who takes a comprehensive view of our constitutional history, that the executive government, though shorn of its lustre, has not lost so much of its real efficacy by the consequences of the revolution as is often supposed; at least, that with a regular army to put down insurrection, and an influence sufficient to obtain fresh statutes of restriction, if such should ever be deemed necessary, it is not exposed, in the ordinary course of affairs, to any serious hazard. But we must here distinguish the executive government, using that word in its largest sense, from the Crown itself, or the personal authority of the sovereign. This is a matter of rather delicate inquiry, but too material to be passed by.
Diminution of personal authority of the Crown.—The real power of the prince, in the most despotic monarchy, must have its limits from nature, and bear some proportion to his courage, his activity, and his intellect. The tyrants of the East become puppets or slaves of their vizirs; or it turns to a game of cunning, wherein the winner is he who shall succeed in tying the bow-string round the other's neck. After some ages of feeble monarchs, the titular royalty is found wholly separated from the power of command, and glides on to posterity in its languid channel, till some usurper or conqueror stops up the stream for ever. In the civilised kingdoms of Europe, those very institutions which secure the permanence of royal families, and afford them a guarantee against manifest subjection to a minister, take generally out of the hands of the sovereign the practical government of his people. Unless his capacities are above the level of ordinary kings, he must repose on the wisdom and diligence of the statesmen he employs, with the sacrifice, perhaps, of his own prepossessions in policy, and against the bent of his personal affections. The power of a king of England is not to be compared with an ideal absoluteness, but with that which could be enjoyed in the actual state of society by the same person in a less bounded monarchy.
The descendants of William the Conqueror on the English throne, down to the end of the seventeenth century, have been a good deal above the average in those qualities which enable or at least induce, kings to take on themselves a large share of the public administration; as will appear by comparing their line with that of the house of Capet, or perhaps most others during an equal period. Without going farther back, we know that Henry VII., Henry VIII., Elizabeth, the four kings of the house of Stuart, though not always with as much ability as diligence, were the master-movers of their own policy, not very susceptible of advice, and always sufficiently acquainted with the details of government to act without it. This was eminently the case also with William III., who was truly his own minister, and much better fitted for that office than those who served him. The king, according to our constitution, is supposed to be present in council, and was in fact usually, or very frequently, present, so long as the council remained as a deliberative body for matters of domestic and foreign policy. But, when a junto or cabinet came to supersede that ancient and responsible body, the king himself ceased to preside, and received their advice separately, according to their respective functions of treasurer, secretary, or chancellor, or that of the whole cabinet through one of its leading members. This change however was gradual; for cabinet councils were sometimes held in the presence of William and Anne; to which other counsellors, not strictly of that select number, were occasionally summoned.
But on the accession of the house of Hanover, this personal superintendence of the sovereign necessarily came to an end. The fact is hardly credible that, George I. being incapable of speaking English, as Sir Robert Walpole was of conversing in French, the monarch and his minister held discourse with each other in Latin.[407] It is impossible that, with so defective a means of communication (for Walpole, though by no means an illiterate man, cannot be supposed to have spoken readily a language very little familiar in this country), George could have obtained much insight into his domestic affairs, or been much acquainted with the characters of his subjects. We know, in truth, that he nearly abandoned the consideration of both, and trusted his ministers with the entire management of this kingdom, content to employ its great name for the promotion of his electoral interests. This continued in a less degree to be the case with his son, who, though better acquainted with the language and circumstances of Great Britain, and more jealous of his prerogative, was conscious of his incapacity to determine on matters of domestic government, and reserved almost his whole attention for the politics of Germany.
Party connections.—The broad distinctions of party contributed to weaken the real supremacy of the sovereign. It had been usual before the revolution, and in the two succeeding reigns, to select ministers individually at discretion; and, though some might hold themselves at liberty to decline office, it was by no means deemed a point of honour and fidelity to do so. Hence men in the possession of high posts had no strong bond of union, and frequently took opposite sides on public measures of no light moment. The queen particularly was always loth to discard a servant on account of his vote in parliament; a conduct generous perhaps, but feeble, inconvenient, when carried to such excess, in our constitution, and in effect holding out a reward to ingratitude and treachery. But the whigs having come exclusively into office under the line of Hanover (which, as I have elsewhere observed, was inevitable), formed a sort of phalanx, which the Crown was not always able to break, and which never could have been broken, but for that internal force of repulsion by which personal cupidity and ambition are ever tending to separate the elements of factions. It became the point of honour among public men to fight uniformly under the same banner, though not perhaps for the same cause; if indeed there was any cause really fought for, but the advancement of a party. In this preference of certain denominations, or of certain leaders, to the real principles which ought to be the basis of political consistency, there was an evident deviation from the true standard of public virtue; but the ignominy attached to the dereliction of friends for the sake of emolument, though it was every day incurred, must have tended gradually to purify the general character of parliament. Meanwhile the Crown lost all that party attachments gained; a truth indisputable on reflection, though while the Crown and the party in power act in the same direction, the relative efficiency of the two forces is not immediately estimated. It was seen, however, very manifestly in the year 1746; when, after long bickering between the Pelhams and Lord Granville, the king's favourite minister, the former, in conjunction with a majority of the cabinet, threw up their offices, and compelled the king, after an abortive effort at a new administration, to sacrifice his favourite, and replace those in power whom he could not exclude from it. The same took place in a later period of his reign, when after many struggles he submitted to the ascendency of Mr. Pitt.[408]
It seems difficult for any king of England, however conscientiously observant of the lawful rights of his subjects, and of the limitations they impose on his prerogative, to rest always very content with this practical condition of the monarchy. The choice of his counsellors, the conduct of government, are intrusted, he will be told, by the constitution to his sole pleasure. Yet both in the one and the other he finds a perpetual disposition to restrain his exercise of power; and, though it is easy to demonstrate that the public good is far better promoted by the virtual control of parliament and the nation over the whole executive government, than by adhering to the letter of the constitution, it is not to be expected that the argument will be conclusive to a royal understanding. Hence, he may be tempted to play rather a petty game, and endeavour to regain, by intrigue and insincerity, that power of acting by his own will, which he thinks unfairly wrested from him. A king of England, in the calculations of politics, is little more than one among the public men of the day; taller indeed, like Saul or Agamemnon, by the head and shoulders, and therefore with no slight advantages in the scramble; but not a match for the many, unless he can bring some dexterity to second his strength, and make the best of the self-interest and animosities of those with whom he has to deal. And of this there will generally be so much, that in the long run he will be found to succeed in the greater part of his desires. Thus George I. and George II., in whom the personal authority seems to have been at the lowest point it has ever reached, drew their ministers, not always willingly, into that course of continental politics which was supposed to serve the purposes of Hanover far better than of England. It is well known that the Walpoles and the Pelhams condemned in private this excessive predilection of their masters for their native country, which alone could endanger their English throne.[409] Yet after the two latter brothers had inveighed against Lord Granville, and driven him out of power for seconding the king's pertinacity in continuing the war of 1743, they went on themselves in the same track for at least two years, to the imminent hazard of losing for ever the Low Countries and Holland, if the French government, so indiscriminately charged with ambition, had not displayed extraordinary moderation at the treaty of Aix la Chapelle. The twelve years that ensued gave more abundant proofs of the submissiveness with which the schemes of George II. for the good of Hanover were received by his ministers, though not by his people; but the most striking instance of all is the abandonment by Mr. Pitt himself of all his former professions in pouring troops into Germany. I do not inquire whether a sense of national honour might not render some of these measures justifiable, though none of them were advantageous; but it is certain that the strong bent of the king's partiality forced them on against the repugnance of most statesmen, as well as of the great majority in parliament and out of it.
Comparatively however with the state of prerogative before the revolution, we can hardly dispute that there has been a systematic diminution of the reigning prince's control, which, though it may be compensated or concealed in ordinary times by the general influence of the executive administration, is of material importance in a constitutional light. Independently of other consequences which might be pointed out as probable or contingent, it affords a real security against endeavours by the Crown to subvert or essentially impair the other parts of our government. For, though a king may believe himself and his posterity to be interested in obtaining arbitrary power, it is far less likely that a minister should desire to do so—I mean arbitrary, not in relation to temporary or partial abridgments of the subject's liberty, but to such projects as Charles I. and James II. attempted to execute. What indeed might be effected by a king, at once able, active, popular, and ambitious, should such ever unfortunately appear in this country, it is not easy to predict; certainly his reign would be dangerous, on one side or other, to the present balance of the constitution. But against this contingent evil, or the far more probable encroachments of ministers, which, though not going the full length of despotic power, might slowly undermine and contract the rights of the people, no positive statutes can be devised so effectual as the vigilance of the people themselves and their increased means of knowing and estimating the measures of their government.
Influence of political writings.—The publication of regular newspapers, partly designed for the communication of intelligence, partly for the discussion of political topics, may be referred, upon the whole, to the reign of Anne, when they obtained great circulation, and became the accredited organs of different factions. The tory ministers, towards the close of that reign, were annoyed at the vivacity of the press both in periodical and other writings, which led to a stamp-duty, intended chiefly to diminish their number, and was nearly producing more pernicious restrictions, such as renewing the licensing act, or compelling authors to acknowledge their names.[410] These however did not take place, and the government more honourably coped with their adversaries in the same warfare; nor, with Swift and Bolingbroke on their side, could they require, except indeed through the badness of their cause, any aid from the arm of power.[411]
In a single hour these two great masters of language were changed from advocates of the Crown to tribunes of the people; both more distinguished as writers in this altered scene of their fortunes, and certainly among the first political combatants with the weapons of the press whom the world has ever known. Bolingbroke's influence was of course greater in England; and, with all the signal faults of his public character, with all the factiousness which dictated most of his writings and the indefinite declamation or shallow reasoning which they frequently display, they have merits not always sufficiently acknowledged. He seems first to have made the tories reject their old tenets of exalted prerogative and hereditary right, and scorn the high-church theories which they had maintained under William and Anne. His Dissertation on Parties, and Letters on the History of England, are in fact written on whig principles (if I know what is meant by that name) in their general tendency; however a politician, who had always some particular end in view, may have fallen into several inconsistencies. The same character is due to the Craftsman, and to most of the temporary pamphlets directed against Sir Robert Walpole. They teemed, it is true, with exaggerated declamations on the side of liberty; but that was the side they took; it was to generous prejudices they appealed, nor did they ever advert to the times before the revolution but with contempt or abhorrence. Libels there were indeed of a different class, proceeding from the jacobite school; but these obtained little regard; the jacobites themselves, or such as affected to be so, having more frequently espoused that cause from a sense of dissatisfaction with the conduct of the reigning family than from much regard to the pretensions of the other. Upon the whole matter it must be evident to every person who is at all conversant with the publications of George II.'s reign, with the poems, the novels, the essays, and almost all the literature of the time, that what are called the popular or liberal doctrines of government were decidedly prevalent. The supporters themselves of the Walpole and Pelham administrations, though professedly whigs, and tenacious of revolution principles, made complaints, both in parliament and in pamphlets, of the democratical spirit, the insubordination to authority, the tendency to republican sentiments, which they alleged to have gained ground among the people. It is certain that the tone of popular opinion gave some countenance to these assertions, though much exaggerated to create alarm in the aristocratical classes, and furnish arguments against redress of abuses.
Publication of debates.—The two houses of parliament are supposed to deliberate with closed doors. It is always competent for any one member to insist that strangers be excluded; not on any special ground, but by merely enforcing the standing order for that purpose. It has been several times resolved, that it is a high breach of privilege to publish any speeches or proceedings of the Commons; though they have since directed their own votes and resolutions to be printed. Many persons have been punished by commitment for this offence; and it is still highly irregular, in any debate, to allude to the reports in newspapers, except for the purpose of animadverting on the breach of privilege.[412] Notwithstanding this pretended strictness, notices of the more interesting discussions were frequently made public; and entire speeches were sometimes circulated by those who had sought popularity in delivering them. After the accession of George I. we find a pretty regular account of debates in an annual publication, Boyer's Historical Register, which was continued to the year 1737. They were afterwards published monthly, and much more at length, in the London and the Gentleman's Magazines; the latter, as is well known, improved by the pen of Johnson yet not so as to lose by any means the leading scope of the arguments. It follows of course that the restriction upon the presence of strangers had been almost entirely dispensed with. A transparent veil was thrown over this innovation by disguising the names of the speakers, or more commonly by printing only initial and final letters. This ridiculous affectation of concealment was extended to many other words in political writings, and had not wholly ceased in the American war.
It is almost impossible to over-rate the value of this regular publication of proceedings in parliament, carried as it has been in our own time to nearly as great copiousness and accuracy as is probably attainable. It tends manifestly and powerfully to keep within bounds the supineness and negligence, the partiality and corruption, to which every parliament, either from the nature of its composition or the frailty of mankind, must more or less be liable. Perhaps the constitution would not have stood so long, or rather would have stood like an useless and untenanted mansion, if this unlawful means had not kept up a perpetual intercourse, a reciprocity of influence between the parliament and the people. A stream of fresh air, boisterous perhaps sometimes as the winds of the north, yet as healthy and invigorating, flows in to renovate the stagnant atmosphere, and to prevent that malaria, which self-interest and oligarchical exclusiveness are always tending to generate. Nor has its importance been less perceptible in affording the means of vindicating the measures of government, and securing to them, when just and reasonable, the approbation of the majority among the middle ranks, whose weight in the scale has been gradually increasing during the last and present centuries.
Increased influence of the middle ranks.—This augmentation of the democratical influence, using that term as applied to the commercial and industrious classes in contradistinction to the territorial aristocracy, was the slow but certain effect of accumulated wealth and diffused knowledge, acting however on the traditional notions of freedom and equality which had ever prevailed in the English people. The nation, exhausted by the long wars of William and Anne, recovered strength in thirty years of peace that ensued; and in that period, especially under the prudent rule of Walpole, the seeds of our commercial greatness were gradually ripened. It was evidently the most prosperous season that England had ever experienced; and the progression, though slow, being uniform, the reign perhaps of George II. might not disadvantageously be compared, for the real happiness of the community, with that more brilliant but uncertain and oscillatory condition which has ensued. A distinguished writer has observed that the labourer's wages have never, at least for many ages, commanded so large a portion of subsistence as in this part of the eighteenth century.[413] The public debt, though it excited alarms from its magnitude, at which we are now accustomed to smile, and though too little care was taken for redeeming it, did not press very heavily on the nation; as the low rate of interest evinces, the government securities at three per cent. having generally stood above par. In the war of 1743, which from the selfish practice of relying wholly on loans did not much retard the immediate advance of the country, and still more after the peace of Aix la Chapelle, a striking increase of wealth became perceptible.[414] This was shown in one circumstance directly affecting the character of the constitution. The smaller boroughs, which had been from the earliest time under the command of neighbouring peers and gentlemen, or sometimes of the Crown, were attempted by rich capitalists, with no other connection or recommendation than one which is generally sufficient. This appears to have been first observed in the general election of 1747 and 1754;[415] and though the prevalence of bribery is attested by the statute-book, and the journals of parliament from the revolution, it seems not to have broken down all floodgates till near the end of the reign of George II. The sale of seats in parliament, like any other transferable property, is never mentioned in any book that I remember to have seen of an earlier date than 1760. We may dispense therefore with the enquiry in what manner this extraordinary traffic has affected the constitution, observing only that its influence must have tended to counteract that of the territorial aristocracy, which is still sufficiently predominant. The country gentlemen, who claimed to themselves a character of more independence and patriotism than could be found in any other class, had long endeavoured to protect their ascendancy by excluding the rest of the community from parliament. This was the principle of the bill, which, after being frequently attempted, passed into a law during the tory administration of Anne, requiring every member of the Commons, except those for the universities, to possess, as a qualification for his seat, a landed estate, above all incumbrances, of £300 a year.[416] By a later act of George II., with which it was thought expedient, by the government of the day, to gratify the landed interest, this property must be stated on oath by every member on taking his seat, and, if required, at his election.[417] The law is however notoriously evaded; and though much might be urged in favour of rendering a competent income the condition of eligibility, few would be found at present to maintain that the freehold qualification is not required both unconstitutionally, according to the ancient theory of representation, and absurdly, according to the present state of property in England. But I am again admonished, as I have frequently been in writing these last pages, to break off from subjects that might carry me too far away from the business of this history; and, content with compiling and selecting the records of the past, to shun the difficult and ambitious office of judging the present, or of speculating upon the future.
It is not very profitable to enquire into the constitutional antiquities of a country which furnishes no authentic historian, nor laws, nor charters, to guide our research, as is the case with Scotland before the twelfth century. The latest and most laborious of her antiquaries appears to have proved that her institutions were wholly Celtic until that era, and greatly similar to those of Ireland.[418] A total, though probably gradual, change must therefore have taken place in the next age, brought about by means which have not been satisfactorily explained. The Crown became strictly hereditary, the governors of districts took the appellation of earls, the whole kingdom was subjected to a feudal tenure, the Anglo-Norman laws, tribunals, local and municipal magistracies were introduced as far as the royal influence could prevail; above all, a surprising number of families, chiefly Norman, but some of Saxon or Flemish descent, settled upon estates granted by the kings of Scotland, and became the founders of its aristocracy. It was, as truly as some time afterwards in Ireland, the encroachment of a Gothic and feudal polity upon the inferior civilisation of the Celts, though accomplished with far less resistance, and not quite so slowly. Yet the Highland tribes long adhered to their ancient usages; nor did the laws of English origin obtain in some other districts two or three centuries after their establishment on both sides of the Forth.[419]
Scots parliament.—It became almost a necessary consequence from this adoption of the feudal system, and assimilation to the English institutions, that the kings of Scotland would have their general council or parliament upon nearly the same model as that of the Anglo-Norman sovereigns they so studiously imitated. If the statutes ascribed to William the Lion, contemporary with our Henry II., are genuine, they were enacted, as we should expect to find, with the concurrence of the bishops, abbots, barons, and other good men (probi homines) of the land; meaning doubtless the inferior tenants in capite.[420] These laws indeed are questionable, and there is a great want of unequivocal records till almost the end of the thirteenth century. The representatives of boroughs are first distinctly mentioned in 1326, under Robert I.; though some have been of opinion that vestiges of their appearance in parliament may be traced higher; but they are not enumerated among the classes present in one held in 1315.[421] In the ensuing reign of David II., the three estates of the realm are expressly mentioned as the legislative advisers of the Crown.[422]
A Scots parliament resembled an English one in the mode of convocation, in the ranks that composed it, in the enacting powers of the king, and the necessary consent of the three estates; but differed in several very important respects. No freeholders, except tenants in capite, had ever any right of suffrage; which may, not improbably, have been in some measure owing to the want of that Anglo-Saxon institution, the county court. These feudal tenants of the Crown came in person to parliament, as they did in England till the reign of Henry III., and sat together with the prelates and barons in one chamber. A prince arose in Scotland in the first part of the fifteenth century, resembling the English Justinian in his politic regard to strengthening his own prerogative and to maintaining public order. It was enacted by a law of James I., in 1427, that the smaller barons and free tenants "need not to come to parliament, so that of every sheriffdom there be sent two or more wise men, chosen at the head court," to represent the rest. These were to elect a speaker, through whom they were to communicate with the king and other estates.[423] This was evidently designed as an assimilation to the English House of Commons. But the statute not being imperative, no regard was paid to this permission; and it is not till 1587 that we find the representation of the Scots counties finally established by law; though one important object of James's policy was never attained, the different estates of parliament having always voted promiscuously, as the spiritual and temporal lords in England.
Power of the aristocracy.—But no distinction between the national councils of the two kingdoms was more essential than what appears to have been introduced into the Scots parliament under David II. In the year 1367 a parliament having met at Scone, a committee was chosen by the three estates, who seem to have had full powers delegated to them, the others returning home on account of the advanced season. The same was done in one held next year, without any assigned pretext. But in 1369 this committee was chosen only to prepare all matters determinable in parliament, or fit to be therein treated for the decision of the three estates on the last day but one of the session.[424] The former scheme appeared possibly, even to those careless and unwilling legislators, too complete an abandonment of their function. But even modified as it was in 1369, it tended to devolve the whole business of parliament on this elective committee, subsequently known by the appellation of lords of the articles. It came at last to be the general practice, though some exceptions to this rule may be found, that nothing was laid before parliament without their previous recommendation; and there seems reason to think that in the first parliament of James I., in 1424, such full powers were delegated to the committee as had been granted before in 1367 and 1368, and that the three estates never met again to sanction their resolutions.[425] The preparatory committee is not uniformly mentioned in the preamble of statutes made during the reign of this prince and his two next successors; but there may be no reason to infer from thence that it was not appointed. From the reign of James IV. the lords of articles are regularly named in the records of every parliament.[426]
It is said that a Scots parliament, about the middle of the fifteenth century, consisted of near one hundred and ninety persons.[427] We do not find however that more than half this number usually attended. A list of those present in 1472 gives but fourteen bishops and abbots, twenty-two earls and barons, thirty-four lairds or lesser tenants in capite, and eight deputies of boroughs.[428] The royal boroughs entitled to be represented in parliament were above thirty; but it was a common usage to choose the deputies of other towns as their proxies.[429] The great object with them, as well as with the lesser barons, was to save the cost and trouble of attendance. It appears indeed that they formed rather an insignificant portion of the legislative body. They are not named as consenting parties in several of the statutes of James III.; and it seems that on some occasions they had not been summoned to parliament, for an act was passed in 1504, "that the commissaries and headsmen of the burghs be warned when taxes or constitutions are given, to have their advice therein, as one of the three estates of the realm."[430] This however is an express recognition of their right, though it might have been set aside by an irregular exercise of power.
Royal influence in parliament.—It was a natural result from the constitution of a Scots parliament, together with the general state of society in that kingdom, that its efforts were almost uniformly directed to augment and invigorate the royal authority. Their statutes afford a remarkable contrast to those of England in the absence of provisions against the exorbitances of prerogative.[431] Robertson has observed that the kings of Scotland, from the time at least of James I., acted upon a steady system of repressing the aristocracy; and though this has been called too refined a supposition, and attempts have been made to explain otherwise their conduct, it seems strange to deny the operation of a motive so natural, and so readily to be inferred from their measures. The causes so well pointed out by this historian, and some that might be added; the defensible nature of great part of the country; the extensive possessions of some powerful families; the influence of feudal tenure and Celtic clanship; the hereditary jurisdiction, hardly controlled, even in theory, by the supreme tribunals of the Crown; the custom of entering into bonds of association for mutual defence; the frequent minorities of the reigning princes; the necessary abandonment of any strict regard to monarchical supremacy, during the struggle for independence against England; the election of one great nobleman to the Crown and its devolution upon another; the residence of the two first of the Stuart name in their own remote domains; the want of any such effective counterpoise to the aristocracy as the sovereigns of England possessed in its yeomanry and commercial towns, placed the kings of Scotland in a situation which neither for their own nor their people's interest they could be expected to endure. But an impatience of submitting to the insolent and encroaching temper of their nobles drove James I. (before whose time no settled scheme of reviving the royal authority seems to have been conceived), and his two next descendants into some courses which, though excused or extenuated by the difficulties of their position, were rather too precipitate and violent, and redounded at least to their own destruction. The reign of James IV., from his accession in 1488 to his unhappy death at Flodden in 1513, was the first of tolerable prosperity; the Crown having by this time obtained no inconsiderable strength, and the course of law being somewhat more established, though the aristocracy were abundantly capable of withstanding any material encroachment upon their privileges.
Though subsidies were, of course, occasionally demanded, yet from the poverty of the realm, and the extensive domains which the Crown retained, they were much less frequent than in England, and thus one principal source of difference was removed; nor do we read of any opposition in parliament to what the Lords of articles thought fit to propound. Those who disliked the government stood aloof from such meetings, where the sovereign was in his vigour, and had sometimes crushed a leader of faction by a sudden stroke of power; confident that they could better frustrate the execution of laws than their enactment, and that questions of right and privilege could never be tried so advantageously as in the field. Hence it is, as I have already observed, that we must not look to the statute-book of Scotland for many limitations of monarchy. Even in one of James II., which enacts that none of the royal domains shall for the future be alienated, and that the king and his successors shall be sworn to observe this law, it may be conjectured that a provision rather derogatory in semblance to the king's dignity was introduced by his own suggestion, as an additional security against the importunate solicitations of the aristocracy whom the statute was designed to restrain.[432] The next reign was the struggle of an imprudent, and, as far as his means extended, despotic prince, against the spirit of his subjects. In a parliament of 1487, we find almost a solitary instance of a statute that appears to have been directed against some illegal proceedings of the government. It is provided that all civil suits shall be determined by the ordinary judges, and not before the king's council.[433] James III. was killed the next year in attempting to oppose an extensive combination of the rebellious nobility. In the reign of James IV., the influence of the aristocracy shows itself rather more in legislation; and two peculiarities deserve notice, in which, as it is said, the legislative authority of a Scots parliament was far higher than that of our own. They were not only often consulted about peace or war, which in some instances was the case in England, but, at least in the sixteenth century, their approbation seems to have been necessary.[434] This, though not consonant to our modern notions, was certainly no more than the genius of the feudal system and the character of a great deliberative council might lead us to expect; but a more remarkable singularity was, that what had been propounded by the lords of articles, and received the ratification of the three estates, did not require the king's consent to give it complete validity. Such at least is said to have been the Scots constitution in the time of James VI.; though we may demand very full proof of such an anomaly, which the language of their statutes, expressive of the king's enacting power, by no means leads us to infer.[435]