« ForrigeFortsett »
which the Star Chamber took care to see more rigorously executed than the laws themselves. The motives of these proclamations were sometimes very frivolous and even ridiculous. Queen Elizabeth had taken offence at the smell of woad; and she issued an edict prohibiting any one from cultivating that useful plant. She was also pleased to take offence at the long swords and high ruffs then in fashion. She sent about herʻofficers, to break every man's sword, and clip every man's ruff, which was beyond a certain length.-HUME, v. 458.
3. The following paragraphs will suffice as an illustration of the style and views of Hooker. Showing the evils of anarchy, and the necessity of consent to the validity of government, he says :
To take away all such mutual grievances, injuries, and wrongs, there was no way but only growing into composition and agreement amongst themselves, by ordaining some kind of government public, and by yielding themselves subject thereunto: that unto whom they granted authority to rule and govern, by them the peace, tranquillity, and happy estate of the rest might be procured. Men always knew that when force and injury was offered they might be defenders of themselves ; they knew that howsoever men may seek their own commodity, yet if this were done with injury unto others, it was not to be suffered, but by all men and by all good means to be withstood; finally they knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, inasmuch as every man is towards himself and them whom he greatly affecteth partial; and therefore that strifes and troubles would be endless, except they gave their common consent all to be ordered by some whom they should agree upon : without which consent there were no reason that one man should take upon him to be lord or judge over another; because, although there be according to the opinion of some very great and judicious men a kind of natural right in the noble, wise, and virtuous, to govern them which are of servile disposition; nevertheless for manifestation of this their right, and men's more peaceable contentment on both sides, the assent of those who are to be governed seemeth necessary.
“The lawful power of making laws to command whole politic societies of men belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth to exereise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived at the first from their consent upon whose persons they impose laws, it is no better than mere tyranny.
“ Laws they are not, therefore, which public approbation hath not made so. But approbation not only they give who personally declare their assent by voice, sign, or act, but also when others do it in their names, by right originally at the least derived from them. As in parliaments, councils, and the like assemblies, alth we be not personally ourselves present, notwithstanding, our assent is by reason of others, agents there in our behalf. And what we do by others, no reason but that it should stand as our deed, no less effectually to bind us than if ourselves had done it in person.”—Eccl. Pol., Bk, I., ch. x. sec. 2, 3, 4, 8.
Of limited or constitutional government, usurpation, and the right of revolution, Hooker speaks thus :
“Even in these very actions which are proper unto dominion, there must be some certain rule, whereunto kings in all their proceedings ought to be strictly tied.
“ The cause of deriving supreme power from a whole entire multitude unto some special part thereof, is partly the necessity of expedition in public affairs; partly the inconveniency of confusion and troubles, where a multitude of equals dealeth ;
and partly the dissipation which must needs ensue in companies, where every man wholly seeketh his own particular. Men by that which is proper are
vered, united they are by that which is common. Wherefore, besides that which moveth each man in particular to seek his private, there must of necessity in all public societies be also a general mover, directing unto the common good, and framing every man's particular to it. The end whereunto all government was instituted, was bonum publicum, the universal or common good.”—Eccl. Pol., Bk. VIII., ch. ii. sec. 16, 18.
“ First unto me it seemeth almost out of doubt and controversy, that every independent multitude, before any certain form of regiment established, hath, under God's supreme authority, full dominion over itself, even as a man not tied with the bond of subjection as yet unto any other, hath over himself the like power God creating mankind did endue it naturally with full power to guide itself, in what kind of societies soever it should choose to live. A man which is born lord of himself may be made another's servant; and that power which naturally whole societies have, may be derived into many, few, or one, under whom the rest shall then live in subjection.”—HOOKER, Bk. VIII., ch. ii. sec. 5.
“I cannot choose but commend highly their wisdom, by whom the foundations of this commonwealth have been laid; wherein though no manner of person or cause be unsubject to the king's power, yet so is the power of the king over all and in all limited, that unto all his proceedings the law itself is a rule. The axioms of our regal government are these : «Lex facit regem ;' the king's grant of any favour made contrary to the law is void; ‘Rex nihil potest nisi quod jure potest. Our kings therefore, when they take possession of the room they are called unto, have it pointed out before their eyes, even by the very solemnities and rites of their inauguration, to what affairs by the said law their supreme authority reacheth."-Eccl. Pol., Bk. VIII., ch. ii. sec. 13.
Subjection therefore we owe, and that by the law of God; we are in conscience bound to yield it even unto every of them that hold the seats of authority and power in relation unto us. Howbeit, not all kind of subjection unto every such kind of power. Concerning scribes and pharisees, our Saviour's precept was, “Whatsoever they shall tell you, do it;' was it His meaning that if they should at any time enjoin the people to levy an army, or to sell their lands and goods for the furtherance of so great an enterprise ; and in a word, that simply whatsoever it were which they did command, they ought without any exception forthwith to be obeyed ? No; but whatsoever they shall tell you,' must be understood in pertinentibus ad cathedram, it must be construed with limitation, and restrained unto things of that kind which did belong to their place and power. For they had not power general, absolutely given them to command them.
“The reason why we are bound in conscience to be subject unto all such power, is because all “powers are of God.”
powers are of God.” They are of God either instituting or permitting them. Power then is of divine institution when either God himself doth deliver, or men, by light of nature, find out the kind thereof. So that the power of parents over children, and of husbands over their wives, the power of all sorts of superiors, made by consent of commonwealths within themselves, or grown from agreement amongst nations, such power is of God's own institution in respect of the kind thereof.
“As for them that exercise power altogether against order, although the kind of power which they have may be of God, yet is their exercise thereof against God, and therefore not of God, otherwise than by permission, as all injustice is.
“Usurpers of power, whereby we do not mean them that by violence have aspired unto places of high authority, but them that use more authority than they did ever receive in form and manner before mentioned (for so they may do, whose titles unto the rooms of authority which they possess no man can deny to be just and lawful: even as contrariwise some men's proceedings in government have been very orderly who, notwithstanding, did not attain to be made governors without great violence and disorder); such usurpers, therefore, as in the exercise of their power do more than they have been authorized to do, cannot in conscience bind any man unto obedience."-Eccl. Pol., Bk. VIII., Appendix No. I.
In the first months of Elizabeth's reign, Aylmer, afterward Bishop of London, published an answer to a book by John Knox, against female monarchy, or, as he termed it, “Blast of the Trumpet against the Monstrous Regiment of Women;" which, though written in the time of Mary, and directed against her, was of course not acceptable to her sister. The answerer relies, among other arguments, on the nature of the English Constitution, which by diminishing the power of the crown, renders it less unfit to be worn by a woman. His clear conception of the nature of a government of laws is well worthy of notice: "Well," he says, “a woman may not reign in England ! Better in England than anywhere, as it shall appear to him, that without affection, will consider the kind of regiment. While I compare ours with others, as it is in itself, and not maimed by usurpation, I can find none either so good or so indifferent. The regiment of England is not a mere monarchy, as some, for lack of consideration, think, nor a mere oligarchy, nor democracy, but a rule mixed of all these, wherein each one of these have, or should have, like authority. The image whereof, and not the image, but the thing indeed, is to be seen in the parliament house, wherein you shall find these three estates: the king or queen, which representeth the monarchy; the noblemen, which be the aristocracy; and the burgesses and knights, the democracy. If the Parliament use their privileges, the king can ordain nothing without them ; if he do, it is his fault in usurping it, and their fault in permitting it. Wherefore, in my judgment, those that in King Henry VIII.'s days would not grant him that his proclamations should have the force of a statute, were good fathers of the country, and worthy of commendation in defending their liberty. But to what purpose is all this? To declare that it is not in England so dangerous a matter to have a woman ruler as men take it to be. For first, it is not she that ruleth, but the laws, the executors whereof be her judges appointed by her, her justices, and such other officers. Secondly, she maketh no statutes or laws, but the honorable court of Parliament; she breaketh none, but it must be she and they together, or else not. If, on the other part, the regiment were such as all hanged on the king's or queen's will, and not upon the laws written; if she might decree and make laws alone without her senate; if she judged offences according to her wisdom, and not by limitation of statutes and laws, if she might dispose alone of war and peace; if, to be short, she were a mere monarch, and not a mixed ruler, you might, peradventure, make me to fear the matter the more, and the less to defend the cause." —HALLAM'S Constitutional History of England, vol. i. pp. 280, 281.
4. Blackstone on the open Examination of Witnesses.--"This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination, taken down in writing before an officer, or his clerk, or in the ecclesiastical courts, and all others that have borrowed their practice from the civil law, where a witness may frequently depose that, in private, which he may be ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language ; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is taken down. Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories, previously penned and settled ; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge during the examination a matter of small importance; for, besides the respect and awe with which his presence will naturally inspire the witness, he is able, by use and experience, to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behavior, and inclinations of the witness ; in which points all persons must appear alike, when their depositions are reduced to writing, and read to the judge, in the absence of those who made them; and yet, as much may be frequently collected from the mariner in which the evidence is delivered, as from the matter of it. These are a few of the advantages attending this, the English way of giving testimony ore tenus."_BLACKSTONE, vol. iii. p. 373, 374.
CHARACTER OF THE STUART PERIOD-ACCESSION OF JAMES-HIS SPEECH ON OPENING
HIS PARLIAMENT-DEFINITION OF TYRANNY-THE DOCTRINE OF DIVINE RIGHT
--SEVERITIES AGAINST ROMAN CATHOLICS-PARLIAMENT OF 1609-ACT FOR
COMPELLING OATHS OF ALLEGIANCE-THE COMMONS MAINTAIN THEIR RIGHT
OF DECIDING ELECTION RETURNS-PARLIAMENTARY PRIVILEGE-THEIR "APO
KING-THEY EXPEL A MEMBER AT HIS DICTATION-HIGH
PREROGATIVE SPEECH OF JAMES TO THE PARLIAMENT IK 1610-ILLEGAL EX
ACTION OF TONNAGE AND POUNDAGE-REMONSTRANCE OF THE COMMONS-CASE
COWELL-CONSIDERATION OF GRIEVANCES ATTEMPT AT UNION BE
TWEEN ENGLAND AND SCOTLAND, AND AT THE ABOLITION OF FEUDAL TENURES-
ON ADJOURNMENT-PARLIAMENT REASSEMBLED-THE PROPOSED
SPANISH MATCH_PETITION OF THE COMMONS-ANGRY LETTER OF JAMES TO
THE SPEAKER SECOND PETITION AND REMONSTRANCE OF THE COMMONS
JAMES'S ANSWERPROTESTATION OF THE COMMONS--IT IS TORN OUT FROM THE
RECORD BY THE KING-PUNISHMENT OF MEMBERS-PARLIAMENT OF 1623–
MONOPOLIES, TOGETHER WITH THE SUSPENDING AND DISPENSING POWERS OF
THE KING ABOLISHED-CONCLUDING OBSERVATIONS.
We come now to a period in the constitutional history of England when all that had been gained for liberty was once more to be brought into dispute, and the long controversy between prerogative and freedom was to receive its ultimate decision. Under the Stuart kings the absolutism that existed in the constitution girded on its strength, did battle for existence, fell before the chartered rights of a brave people resolute to guard them, and was blotted out forevermore. The story of this period has none of the romance which is connected with the giving of the first great charter. Here we see no lordly barons with their retinues