Томас Бабингтон Маколей - The History of England, from the Accession of James II — Volume 1

It is therefore not surprising that those who have written, concerning the limits of prerogative and liberty in the old polity of England should generally have shown the temper, not of judges, but of angry and uncandid advocates. For they were discussing, not a speculative matter, but a matter which had a direct and practical connection with the most momentous and exciting disputes of their own day. From the commencement of the long contest between the Parliament and the Stuarts down to the time when the pretensions of the Stuarts ceased to be formidable, few questions were practically more important than the question whether the administration of that family had or had not been in accordance with the ancient constitution of the kingdom. This question could be decided only by reference to the records of preceding reigns. Bracton and Fleta, the Mirror of Justice and the Rolls of Parliament, were ransacked to find pretexts for the excesses of the Star Chamber on one side, and of the High Court of Justice on the other. During a long course of years every Whig historian was anxious to prove that the old English government was all but republican, every Tory historian to prove that it was all but despotic.

With such feelings, both parties looked into the chronicles of the middle ages. Both readily found what they sought; and both obstinately refused to see anything but what they sought. The champions of the Stuarts could easily point out instances of oppression exercised on the subject. The defenders of the Roundheads could as easily produce instances of determined and successful resistance offered to the Crown. The Tories quoted, from ancient writings, expressions almost as servile as were heard from the pulpit of Mainwaring. The Whigs discovered expressions as bold and severe as any that resounded from the judgment seat of Bradshaw. One set of writers adduced numerous instances in which Kings had extorted money without the authority of Parliament. Another set cited cases in which the Parliament had assumed to itself the power of inflicting punishment on Kings. Those who saw only one half of the evidence would have concluded that the Plantagenets were as absolute as the Sultans of Turkey: those who saw only the other half would have concluded that the Plantagenets had as little real power as the Doges of Venice; and both conclusions would have been equally remote from the truth.

The old English government was one of a class of limited monarchies which sprang up in Western Europe during the middle ages, and which, notwithstanding many diversities, bore to one another a strong family likeness. That there should have been such a likeness is not strange The countries in which those monarchies arose had been provinces of the same great civilised empire, and had been overrun and conquered, about the same time, by tribes of the same rude and warlike nation. They were members of the same great coalition against Islam. They were in communion with the same superb and ambitious Church. Their polity naturally took the same form. They had institutions derived partly from imperial Rome, partly from papal Rome, partly from the old Germany. All had Kings; and in all the kingly office became by degrees strictly hereditary. All had nobles bearing titles which had originally indicated military rank. The dignity of knighthood, the rules of heraldry, were common to all. All had richly endowed ecclesiastical establishments, municipal corporations enjoying large franchises, and senates whose consent was necessary to the validity of some public acts.

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. 2 Конец ознакомительного фрагмента. Текст предоставлен ООО «ЛитРес». Прочитайте эту книгу целиком, купив полную легальную версию на ЛитРес. Безопасно оплатить книгу можно банковской картой Visa, MasterCard, Maestro, со счета мобильного телефона, с платежного терминала, в салоне МТС или Связной, через PayPal, WebMoney, Яндекс.Деньги, QIWI Кошелек, бонусными картами или другим удобным Вам способом. But 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.