The Law and the Working of the Constitution Documents, 1660-1914, Vol. I 1660-1783

475 Pages·1962·20.045 MB·English

by  W. C. Costin, J. Steve Watson

THE LAW AND WORKING OF THE CONSTITUTION
DOCUMENTS 1660-1914
VoL. I 1660-1783
THE CONSTITUTIONAL HISTORY
OF MEDIEVAL ENGLAND
J. E. A. Jolliffe
Third edition
THE CONSTITUTIONAL HISTORY
OF MODERN BRITAIN
Sir David Lindsay Keir
Sixth edition
*
SELECT DOCUMENTS OF
ENGLISH CONSTITUTIONAL HISTORY
1307-1485. S. B. Chrimes and A. L. Brown
THE LAW AND WORKING OF
THE CONSTITUTION
Documents 1625-1660. I. A. Roots and
D. H. Pennington. In preparation
Documents 1660—1914. Two vols.
W. C. Costin and J. Steven Watson
THE LAW AND WORKING
OF THE CONSTITUTION:
DOCUMENTS 1660-1914
BY
W. C. COSTIN,
M.A., D.LITT.
PRESIDENT OF ST JOHN’S COLLEGE, OXFORD
AND
J. STEVEN WATSON, m.a.
STUDENT AND TUTOR OF CHRIST CHURCH, OXFORD
IN TWO VOLUMES
VOLUME I
1660-1783
ADAM & CHARLES BLACK
LONDON
FIRST PUBLISHED 195 2
SECOND EDITION 1961
A. AND C. BLACK LIMITED
4, 5 AND 6 SOHO SQUARE, LONDON W.I
© 1961 A. AND C. BLACK LTD
PRINTED IN GREAT BRITAIN
BY R. AND R. CLARK, LTD., EDINBURGH
QNULP
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DEINDE SO DALIT AT IS MERCATORUM SCISSORU M
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COLLEGII DIVI JOHANNIS BAPTISTAE
FUNDATORI
TANTI BENEFICII MEMORES
JOHANNENSES DUO

INTRODUCTION
The present selection of documents illustrating the development of
the British Constitution since 1660 has, we make bold to claim, two
novel features. The first is a negative one. We have not, in the
manner of some of our predecessors in this field, prefaced each of
our documents, or groups of documents, with a set of notes, com¬
mentaries, or asides of praise and blame ; at the most our notes are
designed to make the reader able to understand the circumstances
of the case as well as if he had the whole of the original document,
instead of an excerpt, before him. Nor have we, as others of such
predecessors have preferred, attempted to write the constitutional
history of two hundred and fifty years in some century or score
of breathless pages, and attached it to the front of the selections
by way of guide or precis of what is to follow. We have chosen
rather to use all the available space for the inclusion of original
materials, intending by our presentation to make it possible for
them to speak for themselves. But the student in need of a general
commentary will, we trust, make use of some full-scale modern
work such as Sir David Keir’s Constitutional History of Modern
Britain, for which these volumes should present pieces justifica-
tives ; for information on some particular topics he would do well
to consult the appropriate sections of Sir William Holdsworth s
History of English Law.
In the second place, we have taken seriously the observation
that the British Constitution is not written down in books but is
flexible in the sense of being found in the minds and practice of
each generation.
Those who have confined their attention to the great constitu¬
tional milestones have not been able to show the whole, nor indeed
some of the most interesting aspects, of the constitution. To do so
one must go behind the Statutes and the Judgements known to
lawyers These are but the “ bones cast in a little low dry garret
which we desire to clothe with flesh and blood and bring out into
the world. We have been anxious—if we may vary the metaphor
to show the wheels turning, the driver at the controls, and the
direction of the journey, as well as the authorized stopping-places.
To do this we have drawn upon more varied sources, correspond¬
ence, commission reports, novels, memoranda, and so on (as has
vii
Vlll THE LAW AND WORKING OF THE CONSTITUTION
only been done tentatively by others for earlier periods and on a
much smaller scale, and by none, to our knowledge, for this). We
hope thus to vivify as well as to extend the range of information.
This has been the hardest part of the work: for statesmen, in
dealing with some practical problem, but rarely put their reflections
whole upon paper (even when the solution can only be reached
from constitutional first principles), or if they do, they seldom achieve
that brevity for which we had perforce to look in making this selec¬
tion Nevertheless, we hope that we have been able to bring into
the foreground institutions of such paramount importance as the
Cabinet, for which one might search the Statutes of these years in
vaim It is hoped also that the Statutes and the great decisions of
the Courts will, in this company, reveal more of their true significance.
Our emphasis, in fact, has throughout been upon showing the
constitution in working order, and not as a collection of exhibits
in a museum. This, we hope, will avoid error. In the first volume
for example, the study of the relationship of the King and his
Ministers under the first two Hanoverians should make the cruder
Whig misinterpretations of the reigns of George II and George III
impossible, even for those who have neither taste nor time to study
the work of modern scholars who have so drastically altered old
conceptions of the eighteenth century. In this volume the Statutes
themselves emphasize the contrast between the seventeenth and
e^hteenth centuries. In the former the great Acts establishing
the framework of a system come thick upon us. In the latter, when
the mass of local legislation is cleared out of the way (upon which
together with foreign affairs, the bulk of ParliamentaryP time was
consumed) there remains a small group of Acts aiming at electoral
reform and the independence of members. However ineffective
Butin tT™ mcreafd notice which here they must attract’
ut in the comparative dearth of major change, the need to show
how habit and custom were the real factors of weight is increased
Nowhere is this more true than in local government And it m^
be done by seeing men at work.
Apart from this attempt to broaden the sources of such a collec
tion we can claim that in our second volume (mainly of the nineteenth
century) we had, even in the use of Statutes, to break new ground
claim tit? * 1S C?ntury of change we have borne in mind Maitland’s
chum that constitutional history must be concerned with all the
many and various fragments of government and authority of dt
modern world. Thus to show the extension of the franchise b^
successive Reform Acts is necessary but not enough : we have tried
s ow something of the treatment of groups within the state ("trade
unions as well as churches), the development of delfegatfd ligLt
INTRODUCTION IX
tion, the appearance of the modern Civil Service, the reform of the
Judicature, and the enormous but chaotic growth of local govern¬
ment. Difficulties arise from the amount of the material and the
verbosity of modern Statutes, so that we can often give the student
only a single specimen. But in this part of the work we have
remained no less anxious to state general principles in concrete
terms : we have preferred to illustrate, for example, freedom of the
individual in terms of street-corner meetings or housing regulations,
rather than to reproduce some set-piece oration by an elder states¬
man. Consider, for instance, the immense constitutional significance,
and the importance to every citizen, of the change in ideas revealed
between Sir William Erie’s memorandum on restraint of trade,
and the opinions expressed in the case of Vacher v. the London
Compositors or in the Osborne Judgement. Or take the doctrine of
the control of finance by the Commons ; does this not emerge more
vividly when it is examined in connection with the establishment
of the Public Accounts Committee and the discussion of the shortage
of parliamentary time ? It emerges indeed not as a platitude but
as a problem, and one with which men of flesh and blood have to
deal as best they can, interpreting for themselves the spirit of the
constitution.
To find the space for all the material we have been discussing we
have felt it right to keep rigidly to the constitution of the United
Kingdom. Indian and overseas affairs have been excluded : Ireland
is included only in respect of her connection—and the dissolution
of that connection—with the United Kingdom. We have not
attempted any detailed illustration of the local differences between
England and Scotland.
In each volume the material has been arranged in four main
groups, by origins rather than by subject-matter. These groups are
Statutes, Parliamentary Proceedings (including Select Committees
and Resolutions as well as debates), Judicial Proceedings, and the
Miscellaneous Section to which we have referred above. This
division is no more perfectly satisfactory than the attempted classifi¬
cation of powers in our constitution. Necessarily some parts, even
successive stages, of the same subject are to be found in more than
one section ; we have endeavoured by means of full cross-references
in footnotes to enable the reader to bring all these together with ease.
This, in conjunction with an index which includes topics and offices
as well as proper names, should make it simpler to trace selected
subjects through different sources and periods. Within each section
the documents are printed simply in chronological order. The text
of the Statutes quoted is that of the Statutes of the Realm to the
end of that series (the death of Queen Anne) and thereafter the
X THE LAW AND WORKING OF THE CONSTITUTION
printed editions of the Statutes at Large. In all sections we have
retained the capitalization and punctuation of the documents as
given in the sources to which reference is made. Omissions are
marked by dots except where, as in some of the Statutes, the numera¬
tion of sections or paragraphs makes an omission sufficiently obvious.
As legal terms—some commonplace and current but some obsolete
and obscure—necessarily occur in both volumes, we have provided
the reader with a glossary which, it is our hope, will not prove the
least useful portion of this work. Our aim has been to explain
technical phrases in words exact enough to satisfy lawyers but yet
plain enough to be understood by historians.
We would like to express our thanks to the many colleagues
and friends with whom we have discussed these volumes in their
formation and from whose suggestions and criticism we have derived
benefit. In particular we would acknowledge our debt of gratitude
to Sir David Keir and to Professor F. H. Lawson for their sympathetic
advice and encouragement, and to Mr. D. R. E. Hopkins of Christ
Church for the preparation of the index.
The issue of a second edition of this volume has given us the
opportunity to correct some errors in the text and we are grateful
to friends who have called our attention to these. We have also
revised some of the footnotes.
w. c. c.
J. s. w.
OXFORD,
TRINITY, 1961
ACKNOWLEDGEMENTS
For permission to print in this volume extracts from works still
under copyright we would thank G. Bell & Sons, Ltd. (Wheatley’s
edition of The Diary of Samuel Pepys); the Cambridge University
Press (The Life and Correspondence of Philip Yorke, Earl of Hardwicke,
by Philip C. Yorke); the Clarendon Press, Oxford (The Continuation
of the Life of Edward, Earl of Clarendon) ; Eyre & Spottiswoode,
Ltd. (Lord Hervey’s Memoirs of the Reign of George II) ; the
Controller of H.M. Stationery Office (The Diary of the First Earl
of Egmont: Historical Manuscripts Commission) ; Longmans
Green & Co., Ltd. (Dykes Source Book of Constitutional History
from 1660 and Foxcroft’s Life and Letters of Sir G. Saville) ;
Macmillan & Co., Ltd. (Fortescue’s Correspondence of George III) •
and the Nottingham City Council (Nottingham Borough Records).’