of parliament, but by a compact between the merchant strangers and king
Edward the First. In the Saxon times the king had a power of excluding
strangers from his kingdom, not merely with an intention of inducing
their own people to traffick, but chiefly to keep out the Danes, who were
the masters of the sea; lest, under pretence of trade, they might get
footing in, and become acquainted with the state of the kingdom. They
were, accordingly, admitted by the kings upon such terms as the latter
were pleased to impose; but Edward, who had the success and prosperity
of his kingdom at heart, came to a perpetual composition with them; gave
them several privileges, and they gave to him certain customs in return.
What shews they had their origin from consent is, that the king could
not raise them without applying to parliament. The customs of natives
or denizens were, certainly, first given to the king by parliament;
though this has been denied by some, merely because no such act is to be
found, as if many of the antient acts had not been lost; but there are
acts and charters still extant, which expressly say they were appointed
and granted by parliament, without the power of which they could not be
either altered or enlarged.
The difference between the customs and the other aids I have mentioned,
_viz._ talliages and subsidies, is, that the latter were occasional,
granted only on particular emergencies, whereas the _customs_ were for
ever. If it be asked how they came to be granted in that manner, we must
refer back to the original state of boroughs and their inhabitants,
traders, in the feudal law. In France, the Roman towns were taken into
protection, and had their antient privileges allowed them; but in the
series of wars that happened in that country for ages, every one of
them in their turns were stormed, and reduced to vassalage, either to
the king or some other great lord; and as, now, these lords had learned
that the Roman emperor laid on taxes at his pleasure, it was but natural
they should claim the same right, especially over towns they had taken
in war. The burgesses, therefore, became in the nature of villains,
not indeed of common villains, for that would absolutely have destroyed
trade, but with respect to arbitrary taxation, which, however, if the
lord was wise, was never exorbitant. In England, I apprehend, they
became villains; for the Saxons were a murdering race, and extirpated
the old inhabitants. However, wise kings, considering the advantages of
commerce, by degrees, bestowed privileges on certain places, in order to
render them flourishing and wealthy; and at length, about the time of
Magna Charta, or before, when every uncertain service was varying to a
certainty, this privilege was obtained for merchant adventurers. But the
other burgesses, that did not import or export, and likewise villains,
were still talliageable at will. This was restrained by Magna Charta,
which declares all talliages unlawful, unless ordained by parliament[238].
To come to the latter head, whether taxes, aids, and subsidies can be
assessed by the king, as sole judge of the occasion, and the _quantum_—or
whether they must be granted by parliament, was the great and principal
contest between the two first princes of the unfortunate house of Stuart
and their people, and which, concurring with other causes, cost the last
of them his life and throne. To say nothing of the divine hereditary
right urged on the king’s behalf, and which, if examined into strictly,
no royal family in Europe had less pretensions to claim, both sides
referred themselves to the antient constitution for the decision of this
point. The king’s friends urged that all lands were holden from him by
services, and that this was one of his prerogatives, and a necessary
one to the defence of the state. They produced several instances of its
having been done, and submitted to, not only in the times of the worst,
but of some of the best kings; and as to acts of parliament against it,
they were extorted from the monarchs in particular exigencies, and could
not bind their successors, as their right was from God.
The advocates of the people, on the other hand, insisted, that, in
England, as in all other feudal countries, the right of the king was
founded on compact; that William the Conqueror was not master of all the
lands in England, nor did he give them on these terms; that he claimed
no right but what the Saxon kings had, and this they certainly had not;
that he established and confirmed the Saxon laws, except such as were
by parliament altered; that he gave away none but the forfeited lands,
and gave them on the same terms as they were generally given in feudal
countries, where such a power was in those days unknown. They admitted,
that, in fact, the kings of England had sometimes exercised this power,
and that, on some occasions, the people submitted to it. But they
insisted, that most of the kings that did it were oppressors of the worst
kind in all respects; that the subjects, even in submitting, insisted
on their ancient rights and freedom, and every one of these princes
afterwards retracted, and confessed they had done amiss. If one or two
of the best and wisest of their kings had practised this, they insisted
that their ancestors acquiescence once or twice, in the measures of a
prince they had absolute confidence in, and at times when the danger,
perhaps, was so imminent as to stare every man in the face, (for it was
scarce ever done by a good prince) as when there was not a fleet already
assembled in the ports of France to waft over an army, should not be
considered as conveying a right to future kings indiscriminately, as a
surrender of their important privileges of taxation. They insisted that
these good and wise kings had acknowledged the rights of the people;
that they excused what they had done, as extorted by urgent necessity,
for the preservation of the whole; that, by repeated acts of parliament,
they had disavowed this power, and declared such proceedings should never
be drawn into precedent. They observed, that there was no occasion for
the vast demesne of the king, if he had this extraordinary prerogative
to exert whenever he pleased. They denied the king’s divine right to
the succession of the crown, and that absolute unlimited authority that
was deduced from it. They insisted that he was a king by compact, that
his succession depended on that compact, though they allowed that a
king intitled by that compact, and acting according to it, has a divine
right of government, as every legal and righteous magistrate hath. They
inferred, therefore, that he was a limited monarch, and consequently
that he and his successors were bound by the legislative, the supreme
authority[239].
The advocates of the king treated the original compact as a chimera, and
desired them to produce it; which the other side thought an unreasonable
demand, as it was, they alledged, transacted when both king and people
were utterly illiterate. They thought the utmost proof possible was
given by quoting the real acts of authority, which the Saxon kings had
exercised; among which this was not to be found; that the Norman kings,
though some of them had occasionally practised it, had, in general, both
bad and good princes, afterwards disclaimed the right, and that it never
had (though perhaps submitted to in one or two instances) been given
up by their ancestors, who always, and even to the face of their best
princes, insisted that it was an encroachment on those franchises they
were intitled to by their birthright.
Such, in general, were the principles on which the arguments were
maintained on both sides: for to go into _minutiæ_, would not consist
with the design of this undertaking. I apprehend it will be evident from
this detail of mine, though I protest I designed to represent both sides
fairly, that I am inclined to the people in this question. I own I think
that any one that considers impartially the few monuments that remain
of the old Saxon times, either in their laws or histories, the constant
course since the conquest, and the practice of nations abroad, who had
the same feudal policy, must acknowledge, that though this right was
claimed and exercised by John, Henry the Third, Edward the First, Second,
and Third, Richard the Second, and Henry the Eighth, it was in the event
disclaimed by every one of them, by the greatest of our kings, Edward
the First and Third, and Henry the Eighth, with such candour and free
will, as inforced confidence in them; by the others, in truth, because
they could not help it. I hope I shall stand excused, if I add, that the
majority of those who engaged in the civil war, either for king Charles,
or against him, were of the same opinion. For, had he not given up this
point, (and indeed he did it with all the appearances of the greatest
sincerity) he would not have got three thousand men to appear for him in
the field. But, unfortunately for his family, and us, (for we still feel
the effects of it from the popish education his offspring got abroad)
his concession came too late. He had lost the confidence of too many
of his people, and a party of republicans were formed; all reasonable
securities were certainly given; but upon pretence that he could not
be depended upon, his enemies prevailed on too many to insist on such
conditions, as would have left him but a king in name, and unhinged the
whole frame of government. Thus the partizans of absolute monarchy on
one side, and the republicans, with a parcel of crafty ambitious men, who
for their own private views affected that character, on the other, rented
the kingdom between them, and obliged the honest, and the friends to the
old constitution, to take side either with one party or other, and they
were accordingly, for their moderation and desire of peace, and a legal
settlement, equally despised which ever they joined with[240].
I shall make but one observation more; that though it is very false
reasoning to argue from events when referred to the decision of God,
as to the matter of right in question; I cannot help being struck with
observing, that though this has been a question of five hundred years
standing in England, the decision of providence hath constantly been
in favour of the people. If it has been so in other countries for two
hundred or two hundred and fifty years past, which is the utmost, let
us investigate the causes of the difference, and act accordingly. The
ancients tell us it is impossible that a brave and virtuous nation can
ever be slaves, and, on the contrary, that no nation that is cowardly, or
generally vitious, can be free. Let us bless God, who hath for so long
a time favoured these realms. Let us act towards the family that reigns
over us, as becomes free subjects, to the guardians of liberty, and of
the natural rights to mankind; but above all, let us train posterity,
so as to be deserving of the continuance of these blessings, that
Montesquieu’s prophecy[241] may never appear to be justly founded.
“England (says he) in the course of things, _must_ lose her liberties,
and then she will be a greater slave than any of her neighbours.”
LECTURE XIX.
_The King’s power as to the making, repealing, altering, or
dispensing with laws._
Having, in the last lecture, begun to draw the outlines of a feudal
monarchy, particularly, as it antiently was in England, in order that it
may be more easy to understand the nature of our present constitution;
and to see how far, and in what particulars, it has deviated from its
original, either for the better, or the worse; and having, for that
purpose, begun with the regal prerogatives, and particularly with that
important one, the raising of money, it will be proper to proceed to
the king’s power as to the _laws_, either in the making, repealing,
altering, or dispensing with them: for these powers are now exercised by
the sovereigns in almost all the monarchies that were antiently feudal,
and have been claimed likewise in England. That this power could not
originally have been in the king, in any feudal state, is plain from the
detail I have given of the old German governments, and of the gradual
progress and formation of the European kingdoms from thence; and it would
not only be an entertaining, but useful study for gentlemen of fortune,
to trace, through the history of every nation, the several steps whereby
the liberties of the people have been undermined, until the whole power
hath settled in the monarch; but I shall content myself with a few
observations on this subject, drawn from the History of England, and such
as, in my apprehension, will be sufficient to settle this point as to us.
If the monarchies on the continent were not absolute in this respect,
much less could the Saxon kings pretend to such a power, from the very
nature of the foundation of their kingdoms. The Franks, the Goths, the
Burgundians, and others on the continent, were led to conquest by those
who had been previously their kings, and who had a stable and settled
authority over them. Very different was the settlement of the Saxons
in Britain. Neither Hengist, nor any of their first kings, had been
kings in Germany. They were mere leaders of companies of freebooters,
who had associated themselves first for plunder, and afterwards to fix
themselves in new seats, in imitation of the other German nations. Their
leaders, therefore, could have no powers, but what were conferred upon
them by their followers; and that _law-making_ was not one of those
powers, appears from the frequent meetings of their _witenagemots_, which
was the name they gave to their general assemblies, or parliaments; and
from all the laws of theirs now extant being made in them. It was the
boast of the good and wise king Alfred, that “he left the people of
England as free as the internal thoughts of man,” a speech which could
never have proceeded from the mouth of one who had the least notion of
the almighty power of kings over the laws. His successors were of the
same opinion. The law of Edward the Confessor, which was ratified by the
Conqueror, says, _Debet rex omnia rite facere in regno, & per judicium
procerum regni_, and if _omnia_, surely the making and repealing of laws,
the most important of all[242].
Our historians and records from that time down undeniably shew who,
in every age, were the legislators, and that the kings alone were not
so. The same is expressly delivered by all the old writers on the law,
Glanville, Bracton, Britton, Fleta and Fortescue. Nay, some of them, in
their zeal for liberty, have gone so far, as to pervert the meaning of
the civil law, which, in their time, was in high repute, and to deny the
absolute power of legislation to the Roman emperor. The civil law says,
_Quod principi placet legis habet vigorem_; but how doth Bracton comment
upon it? _Id est non quicquid de voluntate regis temere præsumptum est,
sed animo condendi jura, sed quod consilio magistratuum suorum, rege
auctoritatem præstante, & habita super hoc deliberatione & tractatu,
recte fuerit definitum[243]._
It must, however, be owned that many of our princes were very desirous of
assuming this power. In the reign of our Henry the First, a perfect copy
of the civil law being discovered at Amalfi, the princes of Europe got an
idea of a monarchy more powerful and absolute than either kings or people
had for many centuries before any notion of; and they were, in general,
desirous enough to stretch, if they could, their limited prerogative to
the height of the antient imperial despotism; but to do this by their
own authority was impossible. A wiser way was pursued. The excellency
of this law was, on every occasion, extolled, not only as providing
remedies, and determining, in many cases, where the feudal customs were
silent, but on account also of its justice and equity; praises that, it
must be owned, do belong to this law where the absolute authority of
the prince is not concerned. Foundations for the teaching this law were
established in all the universities, and the proficients therein were
sure of ample encouragement[244].
The popes, likewise, who wanted to set themselves up in the seat of the
old emperors, contributed not a little, in those days of ignorance,
to spread it; so that it is not wonderful that it got ground in every
country almost on the continent; and being melted into, and conjoined
with the feudal, customs, contributed not a little to the destruction
of the freedom of the antient constitutions. The same method was
attempted in England, but not with the like success. The foundation of
professorships, the introducing that law, and its forms, into the courts
that were more immediately under the king’s influence, as the courts
of the constable, the admiral, and of the universities, and the high
employments its professors obtained, sufficiently shew the fondness
many of our kings had for it. But the common lawyers and parliament
perceived the design, and foresaw the consequences that might follow.
Their opposition was steady and successful; and if they did not banish it
from the courts wherein it had got footing, at least they so limited and
circumscribed it, as to prevent its future progress.
The kings who had any wisdom or prudence, in order to dissemble their
real design, gave way to these restrictions, and waited for more
favourable opportunities; but the imprudent and haughty Richard the
Second avowed himself an open patron to this law. When the duke of
Ireland, the archbishop of York, and others his minions, were accused in
parliament of high treason, and the evidence being known to be so full as
that they must be convicted, he made this weak attempt to screen them.
He got his judges, who were his creatures, to declare the proceedings
against these persons null and void, as not being regulated according to
the forms prescribed by the civil law: but the barons, provoked at such
a bare-faced attempt, insisted they were regular, as agreeable to their
own customs, and declared positively they would never suffer England to
be governed by the Roman civil law, and passed sentence of high treason
against the judges[245].
Whence that king’s fondness for this law arose, may be seen from the
use he put it to, the protection of the instruments of his tyrannical
administration; and from the many wild and unguarded declarations he
made, especially that relative to his commons, _that slaves they were,
and slaves they should be_, and to his parliament, _that he would not at
their request discharge the meanest scullion in his kitchen_. But tho’
this prince was pleased to say, that _the laws were in his breath, and
that he could make and unmake them at his pleasure_, he did not think the
time was come to put that vaunt in execution. He took, therefore, another
way of usurping the legislative power. Having gained over a majority of
the returning officers, and either intimidated or gained over the most
powerful of the nobility, he called the famous parliament at Shrewsbury,
after having nominated to the returning officers whom they should
return; and, as he expected, this parliament, if so it may be called,
was complaisant enough to compliment the king with his heart’s desire.
The former sentence against the judges was reversed, and consequently
the civil law set up as the standard in trials of treason. And they
indirectly transferred the whole legislative power to the sovereign in
the following manner.
As there had been many petitions left unanswered, and many motions
undecided, they gave the power of deciding these, or other matters that
might arise before the next parliament, to the king, twelve peers,
and six commoners. For this committee, they chose such persons, the
majority of whom were at the devotion of the king, and gave him and the
majority power to fill up vacancies; thereby rendering the calling any
future parliament absolutely unnecessary. Thus was the constitution
subverted, and in its stead set up an _oligarchy_ in appearance, but in
truth an absolute monarchy. But as wisely and happily as Richard thought
he had conduced this affair, by which he supposed he had gained his
long wished-for end, neither the seeming authority of parliament, nor
the anathemas thundered in the pope’s bull against the contravenors,
could satisfy the people that they were not stripped of their ancient
rights, or that the king and his committee were rightful legislators.
What sentiments the nation entertained appears, from their deserting him
as one man, and following the first standard that was set up against
him[246].
Since the days of this unfortunate Richard, no king of England hath,
in open and express terms, assumed to himself singly the right of
legislation. Though James the First plainly claimed it, by implication,
in many of his speeches, particularly in those famous words of his,
_that as it was blasphemy for man to dispute what God might do in the
plenitude of his omnipotence, so was it sedition for subjects to dispute
what a king might do in the fulness of his power_. But it would be doing
injustice to the house of Stuart not to acknowledge that some of the
princes before them, particularly the Tudors, tho’ they did not pretend
to make laws, yet issued out many proclamations, or _acts of state_, as
they were afterwards called, to which they exacted the same unlimited
obedience as if they had been laws enacted by parliament. This is a point
worthy consideration; for if all proclamations, or acts of the king and
his council, require unlimited obedience, it is to little purpose whether
we call them laws or not, since such they are in effect. But this, I
think, will be pretty plain, if we make a proper distinction between
such proclamations, or acts of the king, as are particular exertions of
the executive power, which the law and constitution hath entrusted him
with, and such as, affecting the whole people, should in any wise alter,
diminish, or impair the rights they were before lawfully in possession of.
To give some few instances of the first sort. The appointment of
magistrates, the proclaiming war or peace, the laying on embargoes, or
performance of quarantine, the ordering erection of beacons in times of
danger of an invasion, the granting of escheated or forfeited estates,
and many more, are the antient and undoubted prerogatives of the king
alone, and the subject who resists, or disobeys, in such cases, is as
much a _rebel_, or disobedient subject, as if these acts were exercised
by the whole legislature. But with respect to making general rules and
ordinances, affecting the previous rights of the people, the case is very
different. For if such were to be universally obeyed, it is equivalent
to saying, that subjects have, properly speaking, no rights at all,
but hold every thing at the will of the king; a speech which the most
despotic monarch in Europe would not venture to advance.
However, I will not carry this so far as to deny that there may
cases happen wherein the king may have this right, and wherein his
proclamations and orders, even relating to such points, ought to be
obeyed. The cases, I mean, are those of a foreign invasion, or intestine
rebellion, when the danger is too imminent to attend the resolutions of
parliament. In such cases the constitution is, for a time, suspended
by external violence, and as _salus populi suprema lex est_, every man
is under an obligation to use his utmost endeavours to restore it,
and, consequently, obliged to obey him, to whom the constitution has
particularly entrusted that care. Instances of this kind did happen
during the confusions raised by the houses of York and Lancaster, and the
princes were accordingly obeyed. These precedents doubtless gave a handle
to their successors, who had no competitors to the throne, to exercise
the same power in more settled times. But this was used, at first, in a
cautious and sparing manner; and Henry the Eighth, who was a monarch as
unlikely to make undue condescensions to his people as ever lived, was
glad to derive it from the grant of parliament, that his proclamations
should have the force of laws, which was, in truth, giving into his hands
the legislative power for life[247].