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@ -469,159 +469,159 @@ An old book, called “English Liberties,” says:
> established and confirmed by the legislative power, no one privilege
> besides having been ever so often remembered in parliament.”[^114]
[Footnote 106: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab.
Cyc._, 354.]
[^106]: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab.
Cyc._, 354.
[Footnote 107: “_Forty shilling freeholders_” were those “people
dwelling and resident in the same counties, whereof every one of them
shall have free land or tenement to the value of forty shillings by the
year at the least above all charges.” By statute _8 Henry_ 6, ch. 7,
(1429,) these freeholders only were allowed to vote for members of
Parliament from the _counties_.]
[^107]: “_Forty shilling freeholders_” were those “people
dwelling and resident in the same counties, whereof every one of them
shall have free land or tenement to the value of forty shillings by the
year at the least above all charges.” By statute _8 Henry_ 6, ch. 7,
(1429,) these freeholders only were allowed to vote for members of
Parliament from the _counties_.
[Footnote 108: He probably speaks in its favor only to blind the eyes of
the people to the frauds he has attempted upon its true meaning.]
[^108]: He probably speaks in its favor only to blind the eyes of
the people to the frauds he has attempted upon its true meaning.
[Footnote 109: It will be noticed that Coke calls these confirmations of
the charter “acts of parliament,” instead of acts of the king alone.
This needs explanation.
[^109]: It will be noticed that Coke calls these confirmations of
the charter “acts of parliament,” instead of acts of the king alone.
This needs explanation.
It was one of Coke’s ridiculous pretences, that laws anciently enacted
by the king, at the request, or with the consent, or by the advice, of
his parliament, was “an act of parliament,” instead of the act of the
king. And in the extracts cited, he carries this idea so far as to
pretend that the various confirmations of the Great Charter were “acts
of parliament,” instead of the acts of the kings. He might as well have
pretended that the original grant of the Charter was an “act of
parliament;” because it was not only granted at the request, and with
the consent, and by the advice, but on the compulsion even, of those who
commonly constituted his parliaments. Yet this did not make the grant of
the charter “an act of parliament.” It was simply an act of the king.
The object of Coke, in this pretence, was to furnish some color for the
palpable falsehood that the legislative authority, which parliament was
trying to assume in his own day, and which it finally succeeded in
obtaining, had a precedent in the ancient constitution of the kingdom.
There would be as much reason in saying that, because the ancient kings
were in the habit of passing laws in special answer to the _petitions_
of their subjects, therefore those _petitioners_ were a part of the
legislative power of the kingdom.
One great objection to this argument of Coke, for the legislative
authority of the ancient parliaments, is that a very large—probably
much the larger—number of legislative acts were done _without_ the
advice, consent, request, or even presence, of a parliament. Not only
were many formal statutes passed without any mention of the consent or
advice of parliament, but a simple order of the king in council, or a
simple proclamation, writ, or letter under seal, issued by his command,
had the same force as what Coke calls “an act of parliament.” And this
practice continued, to a considerable extent at least, down to Coke’s
own time.
The kings were always in the habit of consulting their parliaments, more
or less, in regard to matters of legislation,—not because their consent
was constitutionally necessary, but in order to make influence in favor
of their laws, and thus induce the people to observe them, and the
juries to enforce them.
The general duties of the ancient parliaments were not legislative, but
judicial, as will be shown more fully hereafter. The _people_ were not
represented in the parliaments at the time of Magna Carta, but only the
archbishops, bishops, earls, barons, and knights; so that little or
nothing would have been gained for liberty by Coke’s idea that
parliament had a legislative power. He would only have substituted an
aristocracy for a king. Even after the Commons were represented in
parliament, they for some centuries appeared only as _petitioners_,
except in the matter of taxation, when their _consent_ was asked. And
almost the only source of their influence on legislation was this: that
they would sometimes refuse their consent to the taxation, unless the
king would pass such laws as they petitioned for; or, as would seem to
have been much more frequently the case, unless he would abolish such
laws and practices as they remonstrated against.
The _influence_ or power of parliament, and especially of the Commons,
in the general legislation of the country, was a thing of slow growth,
having its origin in a device of the king to get money contrary to law,
(as will be seen in the next volume,) and not at all a part of the
constitution of the kingdom, nor having its foundation in the consent of
the people. The power, _as at present exercised_, was not fully
established until 1688, (near five hundred years after Magna Carta,)
when the House of Commons (falsely so called) had acquired such
influence as the representative, _not of the people, but of the wealth,
of the nation_, that they compelled the king to discard the oath fixed
by the constitution of the kingdom; (which oath has been already given
in a former chapter,(page 101) and was, in substance, to preserve and
execute the Common Law, the Law of the Land,—or, in the words of the
oath, “_the just laws and customs which the common people had chosen_;”)
and to swear that he would “govern the people of this kingdom of
England, and the dominions thereto belonging, _according to the statutes
in parliament agreed on_, and the laws and customs of the same.”[^115]
The passage and enforcement of this statute, and the assumption of this
oath by the king, were plain violations of the English constitution,
inasmuch as they abolished, so far as such an oath could abolish, the
legislative power of the king, and also “those just laws and customs
which the common people (through their juries) had chosen,” and
substituted the will of parliament in their stead.
Coke was a great advocate for the legislative power of parliament, as a
means of restraining the power of the king. As he denied all power to
_juries_ to decide upon the obligation of laws, and as he held that the
legislative power was “_so transcendent and absolute as (that) it cannot
be confined, either for causes or persons, within any bounds_,”[^116] he
was perhaps honest in holding that it was safer to trust this terrific
power in the hands of parliament, than in the hands of the king. His
error consisted in holding that either the king or parliament had any
such power, or that they had any power at all to pass laws that should
be binding upon a jury.
These declarations of Coke, that the charter was confirmed by thirty-two
“acts of parliament,” have a mischievous bearing in another respect.
They tend to weaken the authority of the charter, by conveying the
impression that the charter itself might be _abolished_ by “act of
parliament.” Coke himself admits that it could not be revoked or
rescinded by the _king_; for he says, “All pretence of prerogative
against Magna Carta is taken away.” (_2 Inst._, 36.)
He knew perfectly well, and the whole English nation knew, that the
_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
made it impossible that absolute power could ever be practically
established in England, _in the hands of the king_. Hence, as Coke was
an advocate for absolute power,—that is, for a legislative power “so
transcendent and absolute as (that) it cannot be confined, either for
causes or persons, within any bounds,”—there was no alternative for him
but to vest this absolute power in parliament. Had he not vested it in
parliament, he would have been obliged to abjure it altogether, and to
confess that the people, _through their juries_, had the right to judge
of the obligation of all legislation whatsoever; in other words, that
they had the right to confine the government within the limits of “those
just laws and customs which the common people (acting as jurors) had
chosen.” True to his instincts, as a judge, and as a tyrant, he assumed
that this absolute power was vested in the hands of parliament.
But the truth was that, as by the English constitution parliament had no
authority at all for _general_ legislation, it could no more confirm,
than it could abolish, Magna Carta.
These thirty-two confirmations of Magna Carta, which Coke speaks of as
“acts of parliament,” were merely acts of the king. The parliaments,
indeed, by refusing to grant him money, except on that condition, and
otherwise, had contributed to oblige him to make the confirmations; just
as they had helped to oblige him by arms to grant the charter in the
first place. But the confirmations themselves were nevertheless
constitutionally, as well as formally, the acts of the king alone.
It was one of Coke’s ridiculous pretences, that laws anciently enacted
by the king, at the request, or with the consent, or by the advice, of
his parliament, was “an act of parliament,” instead of the act of the
king. And in the extracts cited, he carries this idea so far as to
pretend that the various confirmations of the Great Charter were “acts
of parliament,” instead of the acts of the kings. He might as well have
pretended that the original grant of the Charter was an “act of
parliament;” because it was not only granted at the request, and with
the consent, and by the advice, but on the compulsion even, of those who
commonly constituted his parliaments. Yet this did not make the grant of
the charter “an act of parliament.” It was simply an act of the king.
[^110]: Under the head of “_John._”
The object of Coke, in this pretence, was to furnish some color for the
palpable falsehood that the legislative authority, which parliament was
trying to assume in his own day, and which it finally succeeded in
obtaining, had a precedent in the ancient constitution of the kingdom.
[^111]: _4 Blackstone_, 349-50.
There would be as much reason in saying that, because the ancient kings
were in the habit of passing laws in special answer to the _petitions_
of their subjects, therefore those _petitioners_ were a part of the
legislative power of the kingdom.
[^112]: _3 Blackstone_, 379.
One great objection to this argument of Coke, for the legislative
authority of the ancient parliaments, is that a very large—probably
much the larger—number of legislative acts were done _without_ the
advice, consent, request, or even presence, of a parliament. Not only
were many formal statutes passed without any mention of the consent or
advice of parliament, but a simple order of the king in council, or a
simple proclamation, writ, or letter under seal, issued by his command,
had the same force as what Coke calls “an act of parliament.” And this
practice continued, to a considerable extent at least, down to Coke’s
own time.
[^113]: _Hume_, ch. 2.
The kings were always in the habit of consulting their parliaments, more
or less, in regard to matters of legislation,—not because their consent
was constitutionally necessary, but in order to make influence in favor
of their laws, and thus induce the people to observe them, and the
juries to enforce them.
[^114]: Page 203, 5th edition, 1721.
The general duties of the ancient parliaments were not legislative, but
judicial, as will be shown more fully hereafter. The _people_ were not
represented in the parliaments at the time of Magna Carta, but only the
archbishops, bishops, earls, barons, and knights; so that little or
nothing would have been gained for liberty by Coke’s idea that
parliament had a legislative power. He would only have substituted an
aristocracy for a king. Even after the Commons were represented in
parliament, they for some centuries appeared only as _petitioners_,
except in the matter of taxation, when their _consent_ was asked. And
almost the only source of their influence on legislation was this: that
they would sometimes refuse their consent to the taxation, unless the
king would pass such laws as they petitioned for; or, as would seem to
have been much more frequently the case, unless he would abolish such
laws and practices as they remonstrated against.
[^115]: St. 1 _William and Mary_, ch. 6, (1688.)
The _influence_ or power of parliament, and especially of the Commons,
in the general legislation of the country, was a thing of slow growth,
having its origin in a device of the king to get money contrary to law,
(as will be seen in the next volume,) and not at all a part of the
constitution of the kingdom, nor having its foundation in the consent of
the people. The power, _as at present exercised_, was not fully
established until 1688, (near five hundred years after Magna Carta,)
when the House of Commons (falsely so called) had acquired such
influence as the representative, _not of the people, but of the wealth,
of the nation_, that they compelled the king to discard the oath fixed
by the constitution of the kingdom; (which oath has been already given
in a former chapter,(page 101) and was, in substance, to preserve and
execute the Common Law, the Law of the Land,—or, in the words of the
oath, “_the just laws and customs which the common people had chosen_;”)
and to swear that he would “govern the people of this kingdom of
England, and the dominions thereto belonging, _according to the statutes
in parliament agreed on_, and the laws and customs of the same.”[^115]
The passage and enforcement of this statute, and the assumption of this
oath by the king, were plain violations of the English constitution,
inasmuch as they abolished, so far as such an oath could abolish, the
legislative power of the king, and also “those just laws and customs
which the common people (through their juries) had chosen,” and
substituted the will of parliament in their stead.
Coke was a great advocate for the legislative power of parliament, as a
means of restraining the power of the king. As he denied all power to
_juries_ to decide upon the obligation of laws, and as he held that the
legislative power was “_so transcendent and absolute as (that) it cannot
be confined, either for causes or persons, within any bounds_,”[^116] he
was perhaps honest in holding that it was safer to trust this terrific
power in the hands of parliament, than in the hands of the king. His
error consisted in holding that either the king or parliament had any
such power, or that they had any power at all to pass laws that should
be binding upon a jury.
These declarations of Coke, that the charter was confirmed by thirty-two
“acts of parliament,” have a mischievous bearing in another respect.
They tend to weaken the authority of the charter, by conveying the
impression that the charter itself might be _abolished_ by “act of
parliament.” Coke himself admits that it could not be revoked or
rescinded by the _king_; for he says, “All pretence of prerogative
against Magna Carta is taken away.” (_2 Inst._, 36.)
He knew perfectly well, and the whole English nation knew, that the
_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
made it impossible that absolute power could ever be practically
established in England, _in the hands of the king_. Hence, as Coke was
an advocate for absolute power,—that is, for a legislative power “so
transcendent and absolute as (that) it cannot be confined, either for
causes or persons, within any bounds,”—there was no alternative for him
but to vest this absolute power in parliament. Had he not vested it in
parliament, he would have been obliged to abjure it altogether, and to
confess that the people, _through their juries_, had the right to judge
of the obligation of all legislation whatsoever; in other words, that
they had the right to confine the government within the limits of “those
just laws and customs which the common people (acting as jurors) had
chosen.” True to his instincts, as a judge, and as a tyrant, he assumed
that this absolute power was vested in the hands of parliament.
But the truth was that, as by the English constitution parliament had no
authority at all for _general_ legislation, it could no more confirm,
than it could abolish, Magna Carta.
These thirty-two confirmations of Magna Carta, which Coke speaks of as
“acts of parliament,” were merely acts of the king. The parliaments,
indeed, by refusing to grant him money, except on that condition, and
otherwise, had contributed to oblige him to make the confirmations; just
as they had helped to oblige him by arms to grant the charter in the
first place. But the confirmations themselves were nevertheless
constitutionally, as well as formally, the acts of the king alone.]
[Footnote 110: Under the head of “_John._”]
[Footnote 111: _4 Blackstone_, 349-50.]
[Footnote 112: _3 Blackstone_, 379.]
[Footnote 113: _Hume_, ch. 2.]
[Footnote 114: Page 203, 5th edition, 1721.]
[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]
[Footnote 116: 4 _Inst._, 36.]
[^116]: 4 _Inst._, 36.