Thomas Babington Macaulay - The History of England from the Accession of James II (Vol. 1-5)

Of these kindred constitutions the English was, from an early period, justly reputed the best. The prerogatives of the sovereign were undoubtedly extensive. The spirit of religion and the spirit of chivalry concurred to exalt his dignity. The sacred oil had been poured on his head. It was no disparagement to the bravest and noblest knights to kneel at his feet. His person was inviolable. He alone was entitled to convoke the Estates of the realm: he could at his pleasure dismiss them; and his assent was necessary to all their legislative acts. He was the chief of the executive administration, the sole organ of communication with foreign powers, the captain of the military and naval forces of the state, the fountain of justice, of mercy, and of honour. He had large powers for the regulation of trade. It was by him that money was coined, that weights and measures were fixed, that marts and havens were appointed. His ecclesiastical patronage was immense. His hereditary revenues, economically administered, sufficed to meet the ordinary charges of government. His own domains were of vast extent. He was also feudal lord paramount of the whole soil of his kingdom, and, in that capacity, possessed many lucrative and many formidable rights, which enabled him to annoy and depress those who thwarted him, and to enrich and aggrandise, without any cost to himself, those who enjoyed his favour.

But his power, though ample, was limited by three great constitutional principles, so ancient that none can say when they began to exist, so potent that their natural development, continued through many generations, has produced the order of things under which we now live.

First, the King could not legislate without the consent of his Parliament. Secondly, he could impose no tax without the consent of his Parliament. Thirdly, he was bound to conduct the executive administration according to the laws of the land, and, if he broke those laws, his advisers and his agents were responsible.

No candid Tory will deny that these principles had, five hundred years ago, acquired the authority of fundamental rules. On the other hand, no candid Whig will affirm that they were, till a later period, cleared from all ambiguity, or followed out to all their consequences. A constitution of the middle ages was not, like a constitution of the eighteenth or nineteenth century, created entire by a single act, and fully set forth in a single document. It is only in a refined and speculative age that a polity is constructed on system. In rude societies the progress of government resembles the progress of language and of versification. Rude societies have language, and often copious and energetic language: but they have no scientific grammar, no definitions of nouns and verbs, no names for declensions, moods, tenses, and voices. Rude societies have versification, and often versification of great power and sweetness: but they have no metrical canons; and the minstrel whose numbers, regulated solely by his ear, are the delight of his audience, would himself be unable to say of how many dactyls and trochees each of his lines consists. As eloquence exists before syntax, and song before prosody, so government may exist in a high degree of excellence long before the limits of legislative, executive, and judicial power have been traced with precision.

It was thus in our country. The line which bounded the royal prerogative, though in general sufficiently clear, had not everywhere been drawn with accuracy and distinctness. There was, therefore, near the border some debatable ground on which incursions and reprisals continued to take place, till, after ages of strife, plain and durable landmarks were at length set up. It may be instructive to note in what way, and to what extent, our ancient sovereigns were in the habit of violating the three great principles by which the liberties of the nation were protected.

No English King has ever laid claim to the general legislative power. The most violent and imperious Plantagenet never fancied himself competent to enact, without the consent of his great council, that a jury should consist of ten persons instead of twelve, that a widow's dower should be a fourth part instead of a third, that perjury should be a felony, or that the custom of gavelkind should be introduced into Yorkshire. 2But the King had the power of pardoning offenders; and there is one point at which the power of pardoning and the power of legislating seem to fade into each other, and may easily, at least in a simple age, be confounded. A penal statute is virtually annulled if the penalties which it imposes are regularly remitted as often as they are incurred. The sovereign was undoubtedly competent to remit penalties without limit. He was therefore competent to annul virtually a penal statute. It might seem that there could be no serious objection to his doing formally what he might do virtually. Thus, with the help of subtle and courtly lawyers, grew up, on the doubtful frontier which separates executive from legislative functions, that great anomaly known as the dispensing power.

That the King could not impose taxes without the consent of Parliament is admitted to have been, from time immemorial, a fundamental law of England. It was among the articles which John was compelled by the Barons to sign. Edward the First ventured to break through the rule: but, able, powerful, and popular as he was, he encountered an opposition to which he found it expedient to yield. He covenanted accordingly in express terms, for himself and his heirs, that they would never again levy any aid without the assent and goodwill of the Estates of the realm. His powerful and victorious grandson attempted to violate this solemn compact: but the attempt was strenuously withstood. At length the Plantagenets gave up the point in despair: but, though they ceased to infringe the law openly, they occasionally contrived, by evading it, to procure an extraordinary supply for a temporary purpose. They were interdicted from taxing; but they claimed the right of begging and borrowing. They therefore sometimes begged in a tone not easily to be distinguished from that of command, and sometimes borrowed with small thought of repaying. But the fact that they thought it necessary to disguise their exactions under the names of benevolences and loans sufficiently proves that the authority of the great constitutional rule was universally recognised.

The principle that the King of England was bound to conduct the administration according to law, and that, if he did anything against law, his advisers and agents were answerable, was established at a very early period, as the severe judgments pronounced and executed on many royal favourites sufficiently prove. It is, however, certain that the rights of individuals were often violated by the Plantagenets, and that the injured parties were often unable to obtain redress. According to law no Englishman could be arrested or detained in confinement merely by the mandate of the sovereign. In fact, persons obnoxious to the government were frequently imprisoned without any other authority than a royal order. According to law, torture, the disgrace of the Roman jurisprudence, could not, in any circumstances, be inflicted on an English subject. Nevertheless, during the troubles of the fifteenth century, a rack was introduced into the Tower, and was occasionally used under the plea of political necessity. But it would be a great error to infer from such irregularities that the English monarchs were, either in theory or in practice, absolute. We live in a highly civilised society, through which intelligence is so rapidly diffused by means of the press and of the post office that any gross act of oppression committed in any part of our island is, in a few hours, discussed by millions. If the sovereign were now to immure a subject in defiance of the writ of Habeas Corpus, or to put a conspirator to the torture, the whole nation would be instantly electrified by the news. In the middle ages the state of society was widely different. Rarely and with great difficulty did the wrongs of individuals come to the knowledge of the public. A man might be illegally confined during many months in the castle of Carlisle or Norwich; and no whisper of the transaction might reach London. It is highly probable that the rack had been many years in use before the great majority of the nation had the least suspicion that it was ever employed. Nor were our ancestors by any means so much alive as we are to the importance of maintaining great general rules. We have been taught by long experience that we cannot without danger suffer any breach of the constitution to pass unnoticed. It is therefore now universally held that a government which unnecessarily exceeds its powers ought to be visited with severe parliamentary censure, and that a government which, under the pressure of a great exigency, and with pure intentions, has exceeded its powers, ought without delay to apply to Parliament for an act of indemnity. But such were not the feelings of the Englishmen of the fourteenth and fifteenth centuries. They were little disposed to contend for a principle merely as a principle, or to cry out against an irregularity which was not also felt to be a grievance. As long as the general spirit of the administration was mild and popular, they were willing to allow some latitude to their sovereign. If, for ends generally acknowledged to be good, he exerted a vigour beyond the law, they not only forgave, but applauded him, and while they enjoyed security and prosperity under his rule, were but too ready to believe that whoever had incurred his displeasure had deserved it. But to this indulgence there was a limit; nor was that King wise who presumed far on the forbearance of the English people. They might sometimes allow him to overstep the constitutional line: but they also claimed the privilege of overstepping that line themselves, whenever his encroachments were so serious as to excite alarm. If, not content with occasionally oppressing individuals, he cared to oppress great masses, his subjects promptly appealed to the laws, and, that appeal failing, appealed as promptly to the God of battles.