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].

His great successor, Elizabeth, carried this practice farther, and it will be worth while to discover the reason why a people, in antient times, so jealous of their privileges, should to the one prince explicitly give up, and quietly suffer the other to usurp this power, so essential to a limited constitution. And the cause I take to be the critical state the nation stood in with respect to religion. The bulk of the people, glad to be delivered from the yoke of papal tyranny, and dreading its restoration, were willing to arm their princes with a power sufficient to protect their religion from foreign and domestic enemies; and about religion indeed, this power was at first principally exercised, on the footing of the papal supremacy being transferred to the king. Their end was attained: Papists and Puritans were both kept under, and happy in the enjoyment of their religion, they did not consider the consequences; that this very weapon might be used, by a prince of another stamp, to root out the very religion they were so fond of, and that, by admitting this exertion of power in a matter of so high consequence, it would naturally be used in others that appeared of less[248].

This was what accordingly happened. Proclamations on other points were issued; and monopolies in trade were introduced. All monopolies, undoubtedly, were not destructive to trade. Where a new traffick has been discovered, and one that requires a large expence, and is liable to many hazards, it is very reasonable that the first undertakers should have the trade for a time confined to them, that, by the prospect of extraordinary profit, they may be encouraged to promote and settle that commerce on a solid bottom. Such monopolies, instead of hurting, tend to the promotion of traffick, and are not without similar instances in former times, I mean the kings of England appointing the towns for the staple; and had Elizabeth and James confined themselves to the erection of the Russia, the Turky, and East India companies, and that for a limited term, their conduct would have deserved the highest applause; but that was far from being the case. Monopolies were introduced in the antient, the most common and most necessary commodities, to the great impoverishment of the nation by the advance of prices.

At first it may seem strange that the wise Elizabeth, who, on all occasions, seemed to have her people’s wealth and ease at heart, should follow so destructive a course. But the great end of all her actions was the securing herself on the throne, and one of the principal means she used for that end, was the asking money from her people as seldom as possible. Hence proceeded the long leases of the crown lands, at small rents and large fines, and hence all the monopolies, which she sold to the undertakers; but better had it been for her subjects, to have raised the sums she wanted by an additional subsidy, or an easy tax, than to pay to the monopolists what they had advanced, with their exorbitant profits besides. What Elizabeth began out of policy, James continued, to supply his profusion, to such an extraordinary degree, as disgusted his people, provoked his parliament, and at last made himself ashamed, insomuch that he revoked above twenty. And now no monopoly can be raised but by act of parliament, except in case of a new invention, and that but for a short term of years[249].

I come now to the dispensing power, another prerogative which the Stuarts claimed, and which cost the last of them the throne. As no state can subsist without mercy as well as justice, the king hath the power of distributing this mercy, and exempting a convicted criminal from the penalty of the law, but this is only where the conviction is at his suit; thus the king can pardon a murderer convicted on an indictment in the king’s name, but if he was convicted on an appeal by the next relation, the king cannot. The pardon belongs to the appellant. But there is a wide difference between a pardon, that is remission of punishment after the fact, and dispensing, which is giving a previous licence to break the law. A general dispensation is, in fact, a repeal, and a particular one is a repeal quod hunc, and therefore can belong only to the legislature. The Roman emperors, and the popes, as legislators, assumed this power, and Henry the Third, an apt pupil of his lord and master the pope, introduced the practice into England. In his reign a patent, with a non obstante to any law whatsoever, was produced into court before Roger de Thurkeby, and this honest judge was astonished at the innovation, as Matthew Paris tells us in these words: Quod cum comperisset, ab alto ducens suspicia de prædictæ adjectionis appositione, dixit, heu, heu hos utquid dies expectavimus, ecce, jam civilis curia exemplo ecclesiasticæ, conquinatur, & a sulphureo fonte rivulus intoxicatur [250].