[C] Sir Robert Cotton.
[28] Hale, hist. of the com. law, ch. vii. It has been sometimes insisted upon, that much improvement was brought to England by the canon and civil laws. I cannot, however, but imagine, that these laws, have, on the whole, been rather attended with disadvantage. For tyrannical maxims do not suit a limited government. They may have assisted, indeed, the invention, and extended the views of some lawyers; but they have filled the heads of more with illiberal prejudices.
[29] The reader, who is desirous of seeing proofs of the consideration of the people during the wars between the Houses of York and Lancaster, may consult Cotton’s abridgment of the records; and Bacon on the laws and government of England. Part II.
[30] In the year 1546, there were 126 boroughs that returned members to parliament; and the greatest number of these were wealthy and populous. Brown Willis, notit. parliam. vol. I. In the reign of Edward VI. 23 new boroughs were summoned to send burgesses to parliament. Philip and Mary added 13 more, Elizabeth 30, James the 2 universities and 12 boroughs, Cha. I. 8 boroughs, and Cha. II. the county of Durham and 2 boroughs. Ellys on temporal liberty. Anciently the king might incorporate any town, and enable it to send burgesses to parliament; but this privilege remains not at present with the crown. If the king was now to venture on the creation of a parliamentary borough, it would rest with the house of commons whether they would receive the members.
[31] “As for her government, says a great authority, I assure myself I shall not exceed, if I do affirm, that this part of the island never had 45 years of better times; and yet not all through the calmness of the season, but through the wisdom of her regiment.” Lord Bacon.
[32] “She loved not to be tied, but would be knit unto her people. Of 13 parliaments called during her reign, not one became abortive by unkindness; and yet not any one of them passed without subsidy granted by the people, but one wherein none was desired. And sometimes the aid was so liberal, that she refused the one half, and thanked the people for the remnant; a courtesy that rang loud abroad, to the shame of other princes. She never altered, continued, repealed, nor explained any law, otherwise than by act of parliament, whereof there are multitudes of examples in the statutes of her reign.” Nat. Bacon, Discourse on the laws and government of England, part 2.
I do not mean to say, that Elizabeth, and the princes who preceded her, never acted against the spirit of our government. Her reign, and those of many of her predecessors, were doubtless stained with bold exertions of authority. But bold exertions of authority must not be interpreted to infer despotism in our government. We must separate the personal qualities of princes, and the principles of the constitution. The government of England, and the administrations of its chief magistrates, are very different things.
[33] Hume, Hist. of England, vol. V. p. 462. This historian, the most accomplished, perhaps, who has written in modern times, has attempted to vindicate both James and Charles; but he has done nothing more than to produce evidence to shew, that in some respects they acted from precedents of administration in former princes; and this, if taken even in the fullest extent, is insufficient to justify them. Charles, however, it will be allowed, exceeded every violation of liberty, of which there had been any example; and when he had consented to reduce the exorbitancy of the regal power, his conduct created a suspicion of his sincerity. But on the supposition that he did not advance his authority beyond the practice of former times, he is not therefore to be vindicated. It is no exculpation of a crime in one individual, that it has been committed by others. The advantages of a free government belonged to the people of England; and they were the proper judges when to enforce their privileges against an invader. They might pardon in one sovereign what they would punish in another. They might overlook in Elizabeth what they did not wish to excuse in Charles. The doctrine of resistance is delicate. In a free constitution, like that of which we speak, the prince and the people will often fall into situations where they seem to encroach, or actually do so, on the rights of one another. But it is never on slight grounds that the people will be prevailed upon to take arms against their chief magistrate. After all, had England been an absolute monarchy, Was it thence proper and just that it should remain in that situation? There are rights which it is impossible that men can either lose or forfeit. No authority and no precedent, no usage and no law, can give a sanction to tyranny.
[34] Lord Clarendon applies to him, with great propriety, what was said of Cinna, ausum eum, quæ nemo auderet bonus; perfecisse, quæ a nullo, nisi fortissimo, perfici possent.
[35] Bill of rights, toleration act, act of settlement.