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AYLESBURY ELECTION CASE.
warm and loud debate upon the roof of our house. But why should we wonder at that, when the very ladies are split asunder into high-church and low, and, out of zeal for religion, have hardly time to say their prayers.”* Marlborough. perhaps very little to his taste, was dragged in by the Tories to whom he yet pretended allegiance, to vote for the Bill. He wrote, during the heat of the discussions, to count Wratislaw, to show how this controversy interfered with the real business of parliament. "If it had not been for the Bill against Occasional Conformity, we had reason to flatter ourselves that the Session would have terminated with more of unanimity, and that a greater dispatch would have been given to public affairs than we had seen for many years." +
There were other parliamentary turmoils in this session which involved the most serious disputes betwen the Lords and Commops. One of these was the controversy about privilege in the matter known as the Scottish plot, which we shall refer to a Chapter on Scotland. The other was the constitutional question connected with the famous case of an Aylesbury Election. Ashby, a burgess of Aylesbury, sued the Returning Officer for maliciously refusing his vote. Three judges of the King's Bench decided, against the opinion of Chief Justice Holt, that the verdict which a jury had given in favour of Ashby must be set aside, as the action was not maintainable. The plaintiff went to the House of Lords upon a writ of error, and there the judgment was reversed by a large majority of Peers. The Lower House maintained that “the qualification of an elector is not cognizable elsewhere than before the Commons of England;" that Ashby was guilty of a breach of privilege; and that all persons who should in suture commence such an action, and all attorneys and counsel conducting the same, are also guilty of a high breach of privilege. The Lords, led by Somers, then came to counter-resolutions, of which the most important is, " that the assertion that a person wrongfully hindered from giving his vote for the clection of members of Parliament, by the officer who ought to take it, is without remedy by the ordinary source of the law, is destructive of the property of the subject, is against the freedom of elections, and manifestly tends to encourage corruption and partiality." The prorogation of Parliament put an end to the quarrel in that Session ; but in the next it was renewed with increased violence. The judgment against the Returning officer was followed up by Ashby levying his damages. Other Aylesbury men brought new actions, The Commons imprisoned the Aylesbury electors. The Lords took strong measures that affected, or appeared to affect, the privileges of the Commons. The queen finally stopped the contest by a prorogation ; and the quarrel expired when the Parliament expired under the Triennial Act. Lord Somers “established the doctrine which has been acted on ever since, that an action lies against a Returning Officer for maliciously refusing the vote of an elector.” *
* Swift, Letter to Rev. Dr. Tisdall. December 16, 1703. † “ Dispatches," vol. i. p. 218.
About the time when these violent political tempests commenced, the nation was terrified by that wonderful war of the elements, known as the Great Storm of 1703. On the night of the 27th of November a mighty wind arose in the western and southern districts of England, and in part of the eastern, which toppled down steeples, unroofed houses, drove great ships from their anchorage, and swept away the watch-towers of the coasts. The shores of the Channel were strewn with wrecks. The Thames and the Severn were crowded with dismasted merchantmen, and hulls whose crews had been swept into the raging sea. Fourteen or fifteen men-of-war were cast away, and fifteen hundred seamen perished with them. The Parliament went up with an Address to the queen, beseeching her to build new ships, which cost they would effectually defray. Marlborough, in his communications with foreign courts, spoke of the storm as a grievous national calamity, but one which he hoped would not interfere with the dispatch of troops for his Catholic majesty.t A general fast on the 19th of January was observed with unusual devotion, “the terror which the tempest had left on the people's minds,” says an historian of the time, "contributing much to their affectionate dischar of that religious duty.” Sermons of exhortation to hearken to God's judgments--one of which was called “ A warning from the winds” --were preached throughout the land. Defoe wrote a circumstantial account of the unprecedented calamity. But this visitation was soon forgotten in the excitement of war. Marlborough's wonderful campaign of 1704 caused the passing terror of 1703 to be soon forgotten. Addison,-it may be somewhat profanelycompared Marlborough in the storm of battle to the angel - who rides in the whirlwind ;" "Such as of late o'er pale Britannia
past." This famous simile of “ The Campaign,” was pronounced to be wonderfully fine and true. The moralist was soon neglected who said, “ I cannot but have so much charity for the worst of my fel. low-creatures, that I believe no man was so hardened against his
Lord Campbelle "Lives of the Chancellors." Life of Somers.
OATHS OF WITNESSES.
Maker, but he felt some shocks to his wicked confidence from the convulsions of nature."*
The commotions of party, in the first and second years of the reign of Anne, were so extreme, that men who had higher aims than the possession of power for its own sake looked on with dread and sorrow. Somers wrote to Shrewsbury, who was abroad, in 1704, “ Never man was wearier of a place than I have been of this country for many years ; nor any one reckoned you happier than I have, for being out of the reach and hearing of all the malice, and baseness, and violence, that men are practising upon one another.” † And yet calm and earnest reformers of gross abuses did contrive to carry some measures that were untainted by the breath of faction, and whose benefits still remain to us. One measure of law reform was passed in 1702, in a clause of a Statute entitled “ Ar Act for punishing of Accessories to Felonies and Receivers of Stolen Goods, &c.” We should scarcely expect to find, under this Act for extending the range of the Criminal law, a clause which, from that time, has afforded protection to a prisoner under trial, by placing the witnesses in his favour upon an equality with the witnesses for the Crown. This* clause is as follows: " And be it further enacted, by the authority aforesaid, that from and after the said twelfth day of February, one thousand seven hundred and two, all and every person and persons who shall be produced or appear as a witness or witnesses on the behalf of the Prisoner upon any trial for Treason or Felony, before be or she be admitted to depose or give any manner of evidence, shall first take an Oath to depose the Truth, the whole Truth, and nothing but the Truth, in such manner as the witnesses for the queen are by law obliged to do, and if convicted of any wilful perjury in such evidence shall suffer all the punishments, penalties, forfeitures and disabilities, which by any of the laws and statutes of this realm are, or may be inflicted upon persons convicted of wilful perjury.” I Lord Lyndhurst, in 1836, when he so admirably urged the adoption of the Bill for giving to all prisoners the right to "full counsel,” which had been given, in 1695, in cases of high treason,-pointed out that anomaly in the law which was corrected by this statute of Anne: “In cases of felony, no witnesses were examined on the part of the prisoner until queen Mary sent down directions to the Chief Justice of the Court of Common Pleas to take evidence on the part of the accused, as well as against him. Still the law remained imperfect, because, though witnesses were examined, they • Defoe. “ The Storm,'' 1704. “Shrewsbury Correspondence," p. 641.
# 1 Annæ, stat. 2, c. 9.
were not examined upon oath. Lawyers are sometimes very astute at finding out reasons to support every existing institution, and they assigned a very singular reason for this practice. They said it originated in lenity towards the prisoner, because the witness, not being bound by an oath, would speak largely and beneficially for him. This was rather a singular doctrine, the object of a court of justice being to elicit the truth. But let your lordships mark its practical effect, as exhibited in numerous instances in the State Trials,-the witnesses against the prisoner being examined on oath, and those in his favour not being examined on oath. The moment the judge began to sum up the evidence to the jury, and contrast the evidence for the prosecution with that given on the part of the prisoner, he always took care to inform the jury that, in estimating the degree of weight which was to be attached to the testimony on each side, they must not lose sight of the important fact, that the witnesses for the prosecution were examined on oath, whilst those for the defence were free from that obligation."
Amidst the violent disputes in Parliament upon Conformity, stimulated by the equally violent divisions in the Convocationwhich now claimed a right to sit during a Session of Parliament without being prorogued--there was one measure of real benefit to the clergy, which is popularly known as “ Queen Anne's Bounty.” The “first fruits and tenths” of all spiritual preferments had become part of the revenues of the Crown, under the Statute of Henry VIII., giving to the king, as head of the Church, what the clergy had been accustomed to assign to the Pope, in spite of the efforts of Parliament to prevent or restrain this practice. The “ first fruits” were the whole profits of the preferment during the first year, and the " tenths, or decimæ," the tenth part of the annual profit of each living. When given to the papal see, they were computed upon a valuation of the time of Edward I. When they became part of the royal revenue, they were computed upon that valuation in the time of Henry VIII., known as “ The King's Books.” But by the Statute of the 26th of Henry VIII., the payments for the smaller rectories or vicarages were wholly or partially remitted; but the larger benefices were bound to contribute to the Crown these portions of their nominal value. Queen Anne, by letters patent of the 3rd of November, 1703, “ restored to the Church what had been thus indirectly taken from it.” † But the
Mirror of Parliament," 1836 ; quoted in “Suggestions for the Repression of Crime ;” by Mr. M. D. Hill, Recorder of Birmingham, a volume which not only displays the large and benevolent views of its author, but contains a mass of valuable information on the great topics to which Mr. Hill has especially devoted his later years.
+ Blackstone, vol. 1. p. 281, Mr. Kerr's edition.
QUEEN ANNE'S BOUNTY.
restoration was effected in the most judicious manner, not to re lieve the larger benefices, but in some small degree to equalize the condition of incumbents, by vesting the first-fruits and tenths in trustees, to form a fund for the augmentation of the smaller livings. These letters-patent were confirmed by Statute, of which the preamble is suggestive of what some consider the evils of what is known in our day as “the voluntary principle : ”_"Whereas a sufficient settled Provision for the Clergy in many parts of this realm has never yet been made, by reason whereof divers mean and stipendiary preachers are in many places entertained to serve the Cures and officiate there, who, depending for necessary maintenance upon the good will and liking of their hearers, have been and are thereby under temptation of too much complying and suit. ing their doctrine and teaching to the humours rather than the good of their hearers ; which hath been a great occasion of faction and schism, and contempt of the ministry.” *
When the accession of Queen Anne indicated a nearer, though not a complete approach to the absolute principle of legitimacy, which was set aside by the Revolution and the Act of Settlement, it became the policy of the extreme Tories and High-Churchimen to induce the people to look again with compiacency upon some of the customs which, at the Restoration, had marked the triumphs of divine right and the downfall of Puritanism. Queen Anne received the ceremony of touching for the king's evil, by which all English monarchs from the time of Edward the Confessor, whether saints or sinners, of the Roman Catholic or the Reformed Church, had asserted the miraculous power of the wearer of the “golden rigol.” William III. was profane enough not to believe in this power. Whiston, who had himself a talent for humour, not generally belonging to the vain and eager controversialist, tells a story that William was once prevailed upon to touch for the malady which kings could cure, and that he said to the patient that he prayed God to heal him, and grant him more wisdom at the same time. The discontinuance of the superstition by the king.-who, although a truly pious man, made it "his rule all his life long, to hide the impressions that religion made upon him as much as possible” |--necessarily rendered queen Anne desirous to manifest its efficacy to the world. Her majesty was not perfectly successful in all cases. Dr. Johnson's mother carried him from Lichfield to London, to be touched by the queen, and he used to relate how he had “a confused, but somehow a sort of solemn recollection of
*2 & 3 Arinze, C. 20, (in “ Statutes of the Realm.")
+ Barnet. « Our Own Time," vol. vi. Po 547. VOL. V.-9