Imágenes de páginas
PDF
EPUB

isters of state. If he obtained justice from neither, he might then petition the prince, but upon pain of death, if found in the wrong. This of course virtually forbade petition, and the sovereign, not made cognizant of the wrong, had no opportunity to redress it.

Restrictions to Petition. The restrictions to petition in England are of a nature extremely different, and while they promote the spirit of peace, are no check upon that of liberty. To prevent a tumult or riotous demonstration, it was enacted, that no petition to the government for any alteration in church or state, shall be signed by more than twenty persons, unless the matter be approved of by three justices of the peace, or the major part of the grand jury in the country, and in London by the mayor, aldermen and common council, nor shall any petition be presented by more than ten persons at a time. But now, under a more recent statute, every subject has a right of petition.

5. By bearing arms for defense. These must be suitable to the condition and degree of the subject, and such as are allowed by law.

Summary. So long as these rights remain inviolate, the subject is perfectly free, for every species of tyranny must act in opposition to one or more of these rights. To preserve these, it is requisite, that the constitution of parliament be supported, and that limits, well defined, be placed to the royal prerogative. To vindicate these rights, English subjects are entitled to the regular administration of justice in the courts of law, also to the right of petitioning the king and parliament for the redress of grievances, and lastly to the right of using arms for defense. These rights and liberties we may enjoy entire, except where the laws have laid them under necessary restraints.

CHAPTER II. THE PARLIAMENT.

Magistrates. The most universal public relation, by which men are connected together, is that of government, as governors or governed; in other words, as magistrates and people. Of magistrates, some are supreme, in whom the sovereign power of the state resides, others are subordinate, deriving their authority from the supreme magistrate, and accountable to him for their conduct.

Tyrannical Government. In all tyrannical governments, the supreme magistracy, or the right of both making and enforcing the laws, is vested in one and the same man, or one and the same body of men, and wherever these two powers are united, there can be no public liberty. Such a magistrate may both enact and execute tyrannical laws. But where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with such large power, as may tend to the subversion of its own independence and of the liberty of the subject.

English Government. In England, the supreme power is divided into two branches, the one legislative, to wit, parliament, consisting of the king, lords and commons; the other executive, composed of the king alone.

Origin and History of Parliament. The first institution of parliament is so far hidden in the dark ages of antiquity, that the tracing of its origin is uncertain. The word "parliament,” parlement or colloquium, is a term of comparatively modern date, derived from the French, and signifying a place for conference.1 It was first applied to general assemblies of the states, under Louis VII in France, about the middle of the twelfth century. Long before the introduction of the Norman language into England, all matters of importance were debated and settled in the great councils of the realm; a practice which seems to have been universal among the northern nations, particularly the Germans, and carried by them into all the countries of Europe, which they overran at the dissolution of the Roman empire. Relics of this constitution, under various modifications, are still to be met with in the diets of Poland, Germany and Sweden, and the assembly of the estates in France, for what is there now called the parliament, is only the supreme court of justice, consisting of the peers, certain ecclesiastics and judges, which cannot be termed a general council of the realm.

The Wittena-gemote. In England, this general council or meeting of wise men, the magnum concilium regis, met from time to time, to order the affairs of the kingdom, to make new laws, and to reform the old. We read of it as early as Ina, king of the West Saxons, Offa, king of the Mercians, and Ethelbert, king of Kent. King Alfred ordained, that it should meet twice in the year, or oftener if need be. The succeeding Saxon and Danish monarchs held frequent councils of this sort, as appears from their respective codes of laws.

1 The word was first used in England during the reign of Henry III. 2 These assemblies terminated in 1561.

Other Great Councils. There is no doubt, but that great councils were regularly held under the first leading princes of the Norman line. The general assize or assembly in the reign of Henry II uttered decisions in contradistinction to custom or common law. Hence it appears, that general councils or parliaments were coeval with the kingdom itself. How they were constituted and composed is a matter of dispute, and particularly, whether the commons were summoned at all, or if summoned, at what time they formed a distinct assembly.

Antiquity of the Constitution. It is conceded, that in the main, the constitution of parliament, as it now stands, was marked out in the reign of king John, in 1215, in the great charter granted by that prince, wherein he promised to summon certain titled personages personally, together with all bishops, abbots, earls and the greater barons, and all other tenants in chief under the crown, by the sheriffs and bailiffs, to meet at a certain place, with forty days notice. This constitution has existed from the year 1266 until the present time.

1. The Manner and Time of Assembling. The parliament is regularly to be summoned by the king's writ or letter, issued out of chancery, by advice of the privy council, at least forty days before the session. It can never be convened by its own authority. If it could meet spontaneously, without being called together, its members would never unanimously agree as to the place and time of meeting, and great confusion would ensue. By statute of Charles I, if the king neglected to call a meeting of parliament for three years, the peers might assemble and issue writs for choosing one. If they neglected to do so, their constituents might act. This act was repealed under Charles II. At the time of the revolution of 1688, when William and Mary were summoned to the throne, the lords and commons upon their own authority, and at the summons of the prince of Orange, convened. This was based upon the conviction, that king James II had abdicated the government, and that the throne was vacant. In case of a vacancy of the throne, the form of the royal writ ex necessitate rei must be laid aside, otherwise no parliament could ever meet again. The rule, however, is certain, except in such contingency, that the king alone can convoke the parliament. This, by ancient statutes, he is bound to do annually; not necessarily a new parliament, but only to permit a parliament to sit annually for the redress of grievances and dispatch of business, if need be. Three years by statute is the longest space that shall intervene.

2. The Constituent Parts of a Parlia ent. These are the king and the three estates of the realm, the lords spiritual, the lords temporal, and in another house, the commons. The king alone has the power of dissolving it.

Legislative and Executive Powers. To preserve the balance of the constitution, the executive power should be a branch of the legislative. Their total union would produce tyranny; their total disjunction would in the end produce the same effect, by causing that union, against which it seems to provide. The legislative would soon become tyrannical, by making continual encroachments on the executive power.

The Long Parliament. Thus, the long parliament of Charles I at first acted in a constitutional manner, with the royal concurrence, redressed many grievances, and established many salutary laws. But when the two houses assumed the power of legislation, in exclusion of the royal authority, and took the reins of administration, and in consequence of those united powers, overturned both church and state, parliament established a worse oppression, than any they pretended to remedy.

Veto Power of the King. To prevent such encroachments, the king himself, as part of the parliament, is granted a veto power, and his authority is shown in rejecting, rather than resolving. This royal negative consists, not in mere inability to do wrong, but in preventing wrong from being done. The crown cannot institute alterations of the present law, but it may disapprove changes suggested by the two houses. The legislative cannot abridge the executive power of any right, which it now has by law, without its own consent, since the law must remain as it is, unless all the powers agree to alter it.

Mutual Check on each Other. This then is the true excellence of the English government, that all the parts of it form a mutual check upon each other. Thus every branch of civil policy supports and is regulated by the rest, and mutually keep each other from exceeding their proper limits, while the whole is prevented from separation by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. Like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by itself, would have done.

The Spiritual Lords. These consist of two archbishops and twenty-six bishops,' and at the dissolution of monasteries by Henry VIII, included likewise twenty-six abbots and two priors. All these hold ancient baronies under the king. But though these lords spiritual are a distinct estate from the lords temporal, yet in practice they are usually blended together, under the one name of the lords, and intermix in their votes. Hence they are one estate in every effectual sense, though the ancient distinction still nominally continues. If a bill should pass their house, there is no doubt of its validity, though every lord spiritual should vote against it. The Lords Temporal. These consist of all the

of the realm, by whatever title of nobility distinguished, dukes, marquises, earls, viscounts or barons. Some of these sit by descent, some by creation, others, since the union with Scotland, by election, as is the case, with the sixteen peers, who represent the body of the Scotch nobility. The distinction of rank and honors is laudable, in order to reward such as may be eminent for their services to the state, without burden to the community, exciting generous emulation. This, while it might be dangerous in a republic, or under a despotic sway, is attended with good effects under a free monarchy. A body of nobility is necessary in our mixed constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. When in the seventeenth century, the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. It is highly

peers

1 On the union with Ireland, an addition of one archbishop and three bishops was made for that country.

« AnteriorContinuar »