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ning of the reign of Edward III. being contra-distinguished by the appellation of Nova Statuti.(a)
$ 21. In most of the ancient free states, the share of the people in the business of legislation was to approve or reject the propositions which were made to them, and to give the final sanctions to the laws. The functions of those persons, (or in general, those bodies,) who were intrusted with the executive power, was to prepare and frame the laws, and then to propose them to the people : and in a word, they possessed that branch of the legislative power which may be called the initiative, that is the prerogative of putting that power in action.
The initiative, or exclusive right of proposing in legislative assemblies, attributed to the magistrates was indeed very useful, and perhaps even necessary, in ancient republics, for giving a permanence to the laws as well as for preventing the disorders and struggles for power which have been mentioned before. This
previously considering and approving such laws as were afterwards to be propounded to the people, was, in the first times of the Roman republic, constantly exercised by the senate: laws were made, populi jussu ex auctor senatus. Even in cases of elections, the previous approbation and auctoritas of the senate, with regard to those persons who were offered to the suffrages of the people, were required. “Tum enim non quebat is magistratum qui caperat si patus aucto res non erant facti.”(6)
§ 22. At Venice the senate also exercised powers of the same kind, with regard to the grand council or assembly of the nobles. In the canton of Berne, all propositions must be discussed in the little council which is composed of twenty-seven members, before they are laid
(a) Reeves, vol. 2, p. 84. (6) Cicero pro Plancis.
before the council of two hundred, in whom resides the sovereignty of the whole canton. And in Geneva the law (was) " that nothing shall be treated in the general council or assembly of the citizens which has not been previously treated and approved in the council of the two hundred : and that nothing shall be treated in the two hundred which has not been previously treated and approved in the council of the twenty-five."(a)
In almost all the ancient states of Europe, the will of the prince held the place of law, and custom so confounded this matter of right with the matter of fact, that many writers represent the legislative authority as essentially attached to the character of king, and the plenitude of his power seemed in their estimation to flow from the very definition of his title;(6) and there are not wanting instances in the history of England's kings, where even kings themselves have arrogated to themselves this high prerogative. James I. indeed, claimed that his prerogative was absolute and unlimited; that the concurrence of parliament was not necessary in any of the acts of government, and that all the privileges of the people, were mere voluntary concessions made by his ancestors, which he might revoke at pleasure; these were propositions which he not only maintained, but which he would not suffer to be questioned. “As to dispute,” says he, “what God may do, is blasphemy; so it is seditious to dispute what a king may do in the height of his power.” Even the judges, when called upon, in the execution of their duty to decide between the king and the people, were prohibited from canvassing the rights of the crown. “Deal not,” says his majesty, “in difficult questions before you consult with the king and council, for fear of
(2) Stev. Eng. Con. Vol. ii., ch. 4, pp. 827, 828. (6) Stev. Eng. Con, fol. 2, chu 4, p. 531.
wounding the king through the sides of a private person. The absolute prerogative of the crown, is no subject for the tongue of a lawyer, nor is it lawful to be disputed."(a)
In modern times, however, it has been the aim of the English government not to leave the laws at the disposal of the king. The basis of the English Constitution, the principle on which it depends is, that the legislative power belongs to the parliament alone; that is to say, the power of establishing laws, and of abrogating, changing, or explaining them.
§ 23. The constituent parts of parliament are the King, the House of Lords, and the House of Commons.(6) But neither the king nor his privy council can make any amendment in the bills preferred by the two houses, he having merely the right to accept or reject such laws as shall be passed by the parliament. In the beginning of the existence of the house of commons, bills were presented to the king under the form of petitions. Those to which the king assented were registered among the rolls of parliament, with his answers to them, and at the end of each parliament the judges framed them into statutes.
Several abuses having crept into this method of proceeding, it was afterward ordained that in future cases, the judges should make the statutes before the end of each session, to the end that parliament might detect, and if need be, correct any errors occurring therein. In process of time, it was found that even this was insufficient, and then the present method of framing bills was established, so that now the practice is in England as in this country, that both houses frame the statutes in the
(a) Miller's Eng. Gov., Vol. i., sec. 1, pp. 153, 154. (6) Stev. Eng. Con., Vol. ii., p. 531.
very form and words in which they are to stand when they receive the royal assent.
It is the practice of the king, as it is of the executive in this country, to send messages to either house. These messages are very different now from what they were anciently, being generally expressed in very general words; instead of being directory, they are only made to desire the house to take certain subjects into their consideration. No particular clauses are expressed; the commons are not to declare at any stated time, their acceptance or rejection of the proposition made by the king, but they follow the same modes of proceeding as are pursued in relation to petitions presented by private individuals. Some member usually makes a motion upon the subject expressed in the king's message ; a bill is framed in the usual way; and such bill, like any other, may be dropped at any stage of it: in short, it is treated not as the proposal of the crown, but as the motion of some of their own members, which the house discusses, and finally accepts or rejects.(a) The bill when passed both houses, is presented to the king for his royal assent : those bills which he rejects remain without force, and those to which he assents are incorporated into the statutes of the kingdom, and thereafter treated as the express will of the highest power acknowledged in England. They have the same binding force as the edits en registies have in France, and as the populis-cita had in ancient Rome. And although each of the constitutent parts of parliament might, at the first, have prevented the existence of those laws, the united will of the three, when once enacted, is necessary to repeal them.(6)
(a) Stev. Eng. Con., Vol. ii., ch. 4, pp. 831, 832. (6) Stev. Eng. Cun., Vol. ii., ch. 4, p. 537.
24. This much of the origin and history of statutes in England was deemed proper to incorporate into this treatise as a source of some degree of information to the legal student; a further prosecution of this branch of the subject, is incompatible with the object and design of this work.
It only remains to state in a few words what efficacy is attached to statutes when thus framed in England. A statute when clothed with all the solemnities of a law of the kingdom, it is said hath power to bind every subject of the realm to which legislative authority extends, and under the forms of government there existing : it binds the king if therein particularly named, although it is true as a general rule, that the king is not to be restrained of a liberty or right he before possessed by the general words of an act of parliament, unless he is expressly named in such act; but if the statute be intended to give a remedy against a wrong: (a) to punish frauds,(6) tortius usurpations, or the decay of religion, the king, though not named, shall be bound by it. So, too, although not named expressly, he is bound by an act for the advancement of religion or learning, or for providing for the poor.(c) So also was an act of parliament for the consolidation of endowed rectories and vicarages, held to bind the crown, though not named.(d) If an act spoke of the king generally and indefinitely, being named in a public capacity, it extended to all his successors, and to a queen, if the crown descended to a female.(c) A statute being regarded as the highest authority that government acknowledged on earth,(s) it has been held that
(a) 3 Inst. 618.