The History of England, from the Accession of James the Second - Volume 1 by Thomas Babington Macaulay (diy ebook reader .txt) π
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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 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.
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.
Our forefathers might indeed safely tolerate a king in a few
excesses; for they had in reserve a check which soon brought the
fiercest and proudest king to reason, the check of physical
force. It is difficult for an Englishman of the nineteenth
century to imagine to himself the facility and rapidity with
which, four hundred years ago, this check was applied. The people
have long unlearned the use of arms. The art of war has been
carried to a perfection unknown to former ages; and the knowledge
of that art is confined to a particular class. A hundred thousand
soldiers, well disciplined and commanded, will keep down ten
millions of ploughmen and artisans. A few regiments of household
troops are sufficient to overawe all the discontented spirits of
a large capital. In the meantime the effect of the constant
progress of wealth has been to make insurrection far more
terrible to thinking men than maladministration. Immense sums
have been expended on works which, if a rebellion broke out,
might perish in a few hours. The mass of movable wealth collected
in the shops and warehouses of London alone exceeds five
hundredfold that which the whole island contained in the days of
the Plantagenets; and, if the government were subverted by
physical force, all this movable wealth would be exposed to
imminent risk of spoliation and destruction. Still greater would
be the risk to public credit, on which thousands of families
directly depend for subsistence, and with which the credit of the
whole commercial world is inseparably connected. It is no
exaggeration to say that a civil war of a week on English ground
would now produce disasters which would be felt from the Hoang-ho
to the Missouri, and of which the traces would be discernible at
the distance of a century. In such a state of society resistance
must be regarded as a cure more desperate than almost any malady
which can afflict the state. In the middle ages, on the contrary,
resistance was an ordinary remedy for political distempers, a
remedy which was always at hand, and which, though doubtless
sharp at the moment, produced no deep or lasting ill effects. If
a popular chief raised his standard in a popular cause, an
irregular army could be assembled in a day. Regular army there
was none. Every man had a slight tincture of soldiership, and
scarcely any man more than a slight tincture. The national wealth
consisted chiefly in flocks and herds, in the harvest of the
year, and in the simple buildings inhabited by the people. All
the furniture, the stock of shops, the machinery which could
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 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.
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.
Our forefathers might indeed safely tolerate a king in a few
excesses; for they had in reserve a check which soon brought the
fiercest and proudest king to reason, the check of physical
force. It is difficult for an Englishman of the nineteenth
century to imagine to himself the facility and rapidity with
which, four hundred years ago, this check was applied. The people
have long unlearned the use of arms. The art of war has been
carried to a perfection unknown to former ages; and the knowledge
of that art is confined to a particular class. A hundred thousand
soldiers, well disciplined and commanded, will keep down ten
millions of ploughmen and artisans. A few regiments of household
troops are sufficient to overawe all the discontented spirits of
a large capital. In the meantime the effect of the constant
progress of wealth has been to make insurrection far more
terrible to thinking men than maladministration. Immense sums
have been expended on works which, if a rebellion broke out,
might perish in a few hours. The mass of movable wealth collected
in the shops and warehouses of London alone exceeds five
hundredfold that which the whole island contained in the days of
the Plantagenets; and, if the government were subverted by
physical force, all this movable wealth would be exposed to
imminent risk of spoliation and destruction. Still greater would
be the risk to public credit, on which thousands of families
directly depend for subsistence, and with which the credit of the
whole commercial world is inseparably connected. It is no
exaggeration to say that a civil war of a week on English ground
would now produce disasters which would be felt from the Hoang-ho
to the Missouri, and of which the traces would be discernible at
the distance of a century. In such a state of society resistance
must be regarded as a cure more desperate than almost any malady
which can afflict the state. In the middle ages, on the contrary,
resistance was an ordinary remedy for political distempers, a
remedy which was always at hand, and which, though doubtless
sharp at the moment, produced no deep or lasting ill effects. If
a popular chief raised his standard in a popular cause, an
irregular army could be assembled in a day. Regular army there
was none. Every man had a slight tincture of soldiership, and
scarcely any man more than a slight tincture. The national wealth
consisted chiefly in flocks and herds, in the harvest of the
year, and in the simple buildings inhabited by the people. All
the furniture, the stock of shops, the machinery which could
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