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].
LECTURE XX.
Lords of Parliament or Peers—Earls and Barons—The earlier state of Baronies in England—The Barones majores & minores—Barons by writ and by letters patent—The different ranks of Nobility.