Зображення сторінки
PDF
ePub

as the édits enregistrés have in France, and as the populiscita had in ancient Rome: in a word, they are laws. And though each of the constituent parts of the parliament might, at first, have prevented the existence of those laws, the united will of all the three is now necessary to repeal them.*

* "The arguments used in this chapter, and also wherever De Lolme speaks of the representation of the people, would be perfectly just if the people were fairly represented in parliament. But if we take up the history of nearly every parliament, especially since the reign of Henry IV., and even as far back as the reign of Edward III., we find that the people have never properly been represented in the House of Commons, and that the legislative power has been by corruption wielded first by the king, and, down to the passing of the Reform Bill, by the ministers, or, through influence, by the barons and ecclesiastics. Bolingbroke shrewdly observes, that the king, the barons, and the clergy, were all in reality the enemies of public liberty. The party of each were as many factions in the nation, but they all helped in their turns to establish liberty. The Norman kings, of imperious tempers, assumed great powers. The barons did the same. The people groaned under the oppression of both. The king, the barons, and the clergy, had powerful means of promoting their usurpations; the community had little or no share in the legislative body, no figure in the government, and it is hard to conceive how they could act as others might, and certainly did, by particular concerts to their own particular interests."-Remarks on the History of England, Letter 4.-Ed.

The origin of the House of Commons is involved in obscurity. The Witena Gemote of the Saxons, or the Assembly of Wise Men, included only, it is probable, that smaller number of the inhabitants who were thanes, clergy, and freemen. Rapin quotes the preamble of a charter granted by Canute to the abbots of St. Edmundsbury, which lay at the time he wrote in the office of the king's Remembrancer of the Exchequer. It is as follows: "I, Canute, King of the whole Island of Albion, and many other nations, by the advice and decree of the Archbishops, Bishops, Abbots, Earls, and all my other faithful subjects, have ordained,' &c. Rapin observes that this authority is of great force, "because Canute came to the crown by right of conquest, and consequently it is not at all probable he would have sought the concurrence of the estates had he not found it customary so to do."-Ed.

Parliaments were called by the kings nearly altogether for the purpose of sanctioning taxation. The making of laws, until after the accession of the Tudors, appears to have engaged little of the time of parliament; and the sovereign seemed to arrogate the power of originating as well as of granting laws. In the charter of Henry III. it is set forth that the king of his "free will gave and granted:" "It is provided by the King, our lord, and his Justices;" "The King and his Justices of the Bench," &c.-Ed.

The first writs upon record are of the 49th year of Henry II., to

CHAPTER V.

OF THE EXECUTIVE POWER.

WHEN the parliament is prorogued or dissolved, it ceases to exist; but its laws continue still to be in force: the king remains charged with the execution of them, and is supplied with the necessary power for that purpose.

summon knights of the shire to parliament; and at the same time the cities and boroughs were written and required to send members. In the 52d of Henry III. mention is made of the king "calling the more discreet men of the realm as well of the higher as of the lower estate."-Ed.

In the 3rd of Edward I. the great council of the nation is called the Parliament, and the statutes of that year are by the assent of the "Archbishops, Bishops, Abbots, Earls, and Barons, and all the commonalty of the realm."-See Ruffhead's Preface to the Statutes at Large; Blackstone's Commentaries, B. i. c. 2 and 8, B. ii. c. 5, B. iv. c. 33; Lyttleton's History of England; The 38th of Henry III.—Ed.

But the commonalty above mentioned were a small minority compared with the number of the population in a slavish condition, called Servii, Villanii, Bordarii, and a few soccage tenants of poor and trifling possessions. See Dalrymple on Feudal Property, p. 262.-Ed.

The Crusades were the first cause of the decline of the feudal system. Henry II. gave permission to the barons who were involved in debt to sell their possessions; but it was not until the confiscation of the property of the monasteries by Henry VIII. that the commonalty acquired such landed property as enabled them afterwards to exercise authority in the House of Commons.-Ed.

According to an authority quoted by Brady, the citizens, burgesses, and tenants in ancient demesne, first consulted together apart from the barons and prelates in the 34th of Edward I. The statute of Quia Emptores, 18th of Edward I., greatly increased the number of tenants in capite; for it enacted that on the dismemberment of a fief he must hold of the chief lord of the fee, and when the vendor held a fief of the crown the purchaser became tenant in capite to the king.- Ed.

Even with respect to peers, until Richard II. conferred the dignity of baron by letters patent, no other barons but such as were summoned by writ in virtue of the tenure of their land and baronies were possessed of seats in parliament.-See Dalrymple's Feudal Property.-Ed.

The Statutes were not regularly drawn up by the Estates of Parliament, and read regularly a certain number of times before they were passed, but each house or estate drew up resolutions in a series of petitions, praying the king to give them satisfaction for what they humbly demanded of him. Such articles in those petitions as were approved of and assented to by the king were afterwards in a reduced form drawn up as statutes by the king's lawyers and councillors, and published under the sole authority of the Crown. But, as those statutes

It is, however, to be observed, that though, in his political capacity of one of the constituent parts of the parlia ment (that is, with regard to the share allotted to him in the legislative authority), the king is undoubtedly sovereign, and only needs allege his will when he gives or refuses his assent to the bills presented to him; yet, in the exercise of his powers of government, he is no more than a magistrate; and the laws, whether those that existed before him, or those to which, by his assent, he has given being, must direct his conduct, and bind him equally with his subjects.

I. The first prerogative of the king, in his capacity of supreme magistrate, has for its object the administration of justice.

1o. He is the source of all judicial power in the state: he is the chief of all the courts of law, and the judges are only his substitutes: every thing is transacted in his name; the judgments must be with his seal, and are executed by his

officers.

2o. By a fiction of the law, he is looked upon as the universal proprietor of the kingdom: he is in consequence deemed directly concerned in all offences; and, for that reason, prosecutions are to be carried on in his name in the courts of law.

3o. He can pardon offences, that is, remit the punishment that has been awarded in consequence of his prosecution.

II. The second prerogative of the king is to be the fountain of honour, that is, the distributor of titles and dignities: he creates the peers of the realm, as well as bestows the different degrees of inferior nobility. He moreover disposes of the different offices, either in the courts of law, or elsewhere.

III. The king is the superintendent of commerce:* he were frequently found to be framed in a different sense from what was originally intended, in consequence the bills were drawn up, in the reign of Henry V., by the judges, much in the same way as bills were prepared by those very irresponsible ministers, the Lords of the Articles in Scotland, and presented by them to the old Scottish parliaments.-Ed.

Bills in the form of acts, according to modern form, were introduced into Parliament in the reign of Henry VI.-Blackstone's Commentaries, B. i. c. 11.-See Supplementary Illustrations, No. 2.-Ed.

* That the sovereign is the superintendent of commerce is rather a fiction than a reality. It is true that treaties of commerce and navi

has the prerogative of regulating weights and measures; he alone can coin money, and can give a currency to foreign

coin.

IV. He is the supreme head of the church. In this capacity he appoints the bishops, and the two archbishops; and he alone can convene the assembly of the clergy. This assembly is formed in England, on the model of the parliament: the bishops form the upper house: deputies from the dioceses, and from the several chapters, form the lower house the assent of the king is likewise necessary to the validity of their acts, or canons; and the king can prorogue, or dissolve, the Convocation.

:

gation have always been and still continue to be in the name of the sovereign, and negotiated by her ambassadors and ministers. But no one provision in those treaties can be repugnant to acts of parliament; and especially the navigation act, although many of its provisions have lately been abolished; nor to the customs laws, nor especially to the duties upon either imports or exports as established by acts of parliament.-Ed.

It is true that at one period even the great lawyers allowed the crown almost arbitrary authority in imposing duties upon articles which came in or went forth from the kingdom. Bacon, in the edition of his works in 4to., p. 504, assures us, "1st. The king may constrain the person of his subjects not to go out of the realm. 2nd. The king may forbid the exportation of any commodities out of the realm. 3rd. The king may forbid the importation of any commodities into this realm. 4th. The king may set a reasonable impost upon any foreign wares that come into the realm, and so of native wares that go out of the realm."-Ed.

a

The law being thus understood by the Crown lawyers, the colonial charters of that reign were drawn in conformity to their judgment. We now perceive the reason why there were inserted in every patent license to emigrate, a permission to export merchandises, an exemption from imposts during a limited term," and in the same manner of similar provisions, which were framed according to the prevailing notions of the times. It is curious to remark that it should seem, not only from the passage before cited, but from the argument of Bacon in the House of Commons in support of the same doctrines, there once existed, in the law of England, a principle, perhaps a practice, analogous to the taxation of the old colonies long arrogated by the Crown, since he contended that the king might establish an impost on exports and imports, though he admitted that the prerogative could not impose a domestic tax on lands, or polls, or property.-Ed.

Among the first grievances in America was the mischievous interference of James the First with the importation of tobacco, and lettin g the duties to the farmers of the customs.-Ed.

V. He is, in right of his crown, the generalissimo of all sea or land forces whatever; he alone can levy troops, equip fleets, build fortresses, and fill all the posts in them.

VI. He is, with regard to foreign nations, the representative and the depository of all the power and collective majesty of the nation; he sends and receives ambassadors; he contracts alliances; and has the prerogative of declaring war, and of making peace, on whatever conditions he thinks proper.

VII. In fine, what seems to carry so many powers to the height, is, its being a fundamental maxim, that THE KING CAN DO NO WRONG: which does not signify, however, that the king has not the power of doing ill, or, as it was pretended by certain persons in former times, that every thing he did was lawful; but only that he is above the reach of all courts of law whatever, and that his person is sacred and inviolable.*

*The Revolution of 1688 settled the prerogatives of the Crown on the one hand, and the legislative powers of the House of Commons, although the levying of taxes has been clearly defined by previous Acts of Parliament, from the Magna Charta downwards. The fallacies of Sir Robert Filmer and the advocates of passive obedience and non-resistance were abolished for ever, and the authority of the Sovereign has since been founded on incontestable principles, and, as observed by Bolingbroke, in his IDEA OF A PATRIOT-KING,-" on fairer deductions from them than on the chimeras of madmen, or, what has been more common, the sophisms of knaves. A human right, that cannot be controverted, is preferable, surely, to a pretended divine right, which every man must believe implicitly, as few will do, or not believe at all. Princes usually commit crimes and errors from having received a false education, and from being influenced by unworthy favourites or unprincipled ministers. Louis XIV. was a remarkable example of acting upon an education which made him consider the kingdom and his subjects as his property. Charles I. was another. The good of the people ought to be the legitimate and true end of government. The greatest good which people can enjoy is liberty without anarchy. Rulers are appointed for this end; and a patriot-king will consider the constitution as two tables, containing the rule of his government and the measure of his subjects' obedience; or as one system composed of different parts and power, but all duly proportioned to one another, and conspiring by their harmony to the perfection of the whole. He will make one, and but one, distinction between his rights and those of his people he will look on his to be a trust and theirs a property. He will discern that he can have a right to no more than is trusted to him

« НазадПродовжити »