3. Prerogative of the Crown. James I., instead of pursuing a liberal policy, and thus respecting the national voice, conceived that illegal severity against every indication of freedom, would quell the national spirit, and thus permit him to tyrannize with impunity over the liberties of his subjects. of the House of Tudor applied to ordinary govern ment. He adopted, as principles of ordinary government, the Tyrannical acts severe and tyrannical acts of the House of Tudor, but forgetting that the acquiescence of the people to such acts arose from the extraordinary train of events which had encouraged them; and his ministers being exalted, by their rank, above the people, occupied with intrigues for power, and either despising or ignorant of the passions with which the nation were excited, united with the king in refusing any popular concession, until the hour of conciliation had passed. Archbishop Bancroft and the clergy inculcated the doctrine of the absolute powers of the crown, for the purpose of making the royal supremacy over the church the very instrument of its independence from the law: and, in 1605, Bancroft made complaints to the Star Chamber', that the courts of law interfered by continual prohibitions with the ecclesiastical jurisdiction, or on the slightest suggestion of some matter belonging to the temporal court; but the judges vindicated, in every instance, their right to take cognizance of every collateral matter springing out of an ecclesiastical suit, and repelled the attack upon their power to issue prohibitions, as a strange presumption. The clergy contended that the king's authority was sufficient to reform what was amiss in any of his own courts, all jurisdiction, spiritual and temporal, being annexed to his crown. But the judges denied that anything less than an act of parliament could alter the course of justice established by law; and the complaint of the clergy failed, as the Court of Star Chamber refused to interfere. The question with regard to the royal power became a very dangerous subject of discussion; and without employing either ambiguous, or insignificant terms, which determined nothing, it was impossible to please both king and parliament'. 1 2 Inst. 601. Collier, 608. 2 State Trials, 131. gift, App. 227. 1 Hallam's Const. Hist. 441. Strype's Life of Whit * 5 Parl. Hist. 221. Y Clergy contend that spiritual jurisdiction is crown." and temporal vested in the Judges deny that any thing but a statute can divert the course of jus tice. JAMES I. 603-1625. Cowell's Law of the king. Dr. Cowell experienced the indignation of the commons, for having in his "Interpreter," but which was suppressed by royal proclamation, improperly magnified the prerogative of the crown: thus, under the title "KING," he observes," He is Absolute power above the law by his absolute power, and though, for the better and equal course in making laws, he do admit the three estates unto council, yet this, in divers learned men's opinion, is not of constraint, but of his own benignity, or by reason of the promise made upon the oath at the time of his coronation. And though at his coronation he take an oath not to alter the laws of the land, yet, this oath notwithstanding, he may alter or suspend any particular law that seemeth hurtful to the public estate. Thus much, in short, because I have heard some to be of opinion that the laws are above the king." The king above parliament. A king in abstractô et in concretô. The folly of James upon the subject of prerogative. Dr. Cowell then alludes to parliament. "Of these two, one must be true,-either that the king is above the parliament, that is, the positive laws of his kingdom, or else that he is not an absolute king. And, therefore, though it be a merciful policy, and also a politic mercy, not alterable without great peril, to make laws by the consent of the whole realm, because so no part shall have cause to complain of a partiality, yet simply to bind the prince to or by these laws, were repugnant to the nature and constitution of an absolute monarchy." Under the title "PREROGATIVE,"-" the king, by the custom of this kingdom, maketh no laws without the consent of the three estates, though he may quash any law concluded of by them;" and that he "holds it incontrollable, that the king of England is an absolute king." The king himself, in his writings, was obliged to make his his escape through a distinction, which he framed between a king in abstracto, and a king in concretó. An abstract king, he said, had all power; but a concrete king was bound to observe the laws of the country which he governed *. But how bound?-by conscience only? or might his subjects resist him, and defend their privileges? This he thought not fit to explain;-and so difficult is it of explanation that the laws have maintained a total silence with regard to it. Nothing can afford a more forcible illustration of the vanity, impolicy, and inconsistency of James upon the ques 3 Coke's Detection, 59, edit. 1607. * King James's Works, 533. tion of "Prerogative," than a speech he made to parliament, when asking for a supply, in the following terms: "I conclude, then, the point touching the power of kings, with this axiom of divinity, that, as to dispute what God may do, is blasphemy, but what God wills, that divines may lawfully and do ordinarily dispute and discuss; so it is sedition in subjects to dispute what a king may do in the height of his power. But just as kings will ever be willing to declare what they will do if they will not incur the curse of God, I will not be content that my power be disputed upon; but I shall ever be willing to make the reason appear of my doings, and rule my actions according to my laws." The practice of issuing commissions, by way of temporary regulation, but interfering with the subjects' liberty, in cases unprovided for by parliament, had become an instrument of tyranny. In 1610, the privy council inquired of Lord Coke, (of whom, it may be remarked, that after having acquired the highest professional honours by the meanest political sycophancy, he became, in his old age, as nothing was to be acquired by a contrary policy, an independent man,) whether the king, by his proclamation, might prohibit new buildings about London, and whether he might prohibit the making of starch from wheat,-which was done with a view to what answer the king should make to the commons' remonstrances against these proclamations. Coke, after having associated three judges with himself, resolved,—" that the king, by his proclamation, cannot offence which was not one before; for then he might create any alter the law of the land in a high point; for if he an offence where none is, upon that ensues fine and imprisonment, that the king hath no prerogative but what the law of the land allows him,-that the king, for the prevention of offences, may, by proclamation, admonish all his subjects, that they keep the laws and do not offend them, upon punishment to be inflicted by the law, and the neglect of such proclamation aggravates the offence,-and that if an offence be not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it so "." create may The commons also objected to the practice of borrowing on privy seals; to new monopolies; the High Commission Court; 56 Hume, 55. King James's Works, 531. 12 Rep. 31. 2 Inst. 418, 479. Rot. Parl. 5 Henry IV. n. 39. Steph. Law. Corp. 16-26, ed. 1835. 16 Rymer, 107. 75 Parl. Hist. 241. 1 Hallam's Const. Hist. 445. JAMES I. 1603-1625. AUTHORITY OF THE SOVEREIGN SIONS AND PRO CLAMATIONS, The king cannot, tion, create an by his proclama offence. Right of the subject not to be governed, except by the common and statute law. JAMES I. 1603-1625. Protest of the commons against ples of govern ment. and particularly against the king's proclamations assuming the character of laws. "Amongst many other points of happiness and freedom," it is said, "which your majesty's subjects undefined princi- of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law, which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government, which, as it hath proceeded from the original good constitution and temperature of this estate, so bath it been the principal means of upholding the same, in such sort as that their kings have been just, beloved, happy, and glorious, and the kingdom itself peaceable, flourishing, and durable so many ages. And the effect, as well of the contentment that the subjects of this kingdom have taken in this form of government, as also of the love, respect, and duty, which they have, by reason of the same, rendered unto their princes, may appear in this, that they have, as occasion hath required, yielded more extraordinary and voluntary contributions to assist their kings, than the subjects of any other known kingdom whatsoever. sions. "Out of this root hath grown the indubitable right of the people of this kingdom not to be made subject to any punishment that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parIllegal commis- liament. Nevertheless it is apparent, both that proclamations have been of late years much more frequent than heretofore, and that they are extended, not only to the liberty, but also to the goods, inheritances, and livelihood of men; some of them tending to alter some points of the law, and make a new; other some made, shortly after a session of parliament, for matter directly rejected in the same session; other appointing punishments to be inflicted before lawful trial and conviction; some containing penalties in form of penal statutes; some referring the punishment of offenders to courts of arbitrary discretion, which have laid heavy and grievous censures upon the delinquents; some, as the proclamation for starch, accompanied with letters commanding inquiry to be made against the transgressors at the quarter-sessions; and some vouching former proclamations to countenance and warrant the later, as by a catalogue here underwritten more particularly appeareth. 66 'By reason whereof there is a general fear conceived and spread among your majesty's people, that proclamations will, by degrees, grow up, and increase to the strength and nature of laws; whereby not only that ancient happiness, freedom, will be much blemished (if not quite taken away), which their ancestors have so long enjoyed; but the same may also (in process of time) bring a new form of arbitrary government upon the realm: and this their fear is the more increased by occasion of certain books lately published, which ascribe a greater power to proclamations than heretofore had been conceived to belong unto them; as also of the care taken to reduce all the proclamations made since your majesty's new reign into one volume, and to print them in such form as acts of parliament formerly have been, and still are used to be, which seemeth to imply a purpose to give them more reputation and more establishment than heretofore they have had "." This policy was justified by James upon the principle, that although, by the constitution and policy of the kingdom, proclamations were not of equal force with laws; yet it was a duty incumbent on him, and a power inseparably annexed to the crown, to restrain and prevent such mischiefs and inconveniences as were growing on the state, against which no certain law was extant, and which might tend to the great detriment of the subject, if there should be no remedy provided till the meeting of a parliament; and which prerogative, had been by his progenitors, always used and enjoyed '. JAMES I. 1603-1625. General appreincrease of proclamations. hensions respect Policy of issuing justified by proclamations James. laws and procla The acknowledged difference between laws and proclama- Assumed distinctions was, that the authority of the former was perpetual, that tion between of the latter expired with the sovereign who emitted them1o:—mations. but what the authority could be, which bound the subject, yet was different from the authority of laws, and inferior to it, seems inexplicable. 4. Taxes cannot be levied without consent of Parliament. During this reign, the opposition party in the House of Commons were predominant, and, with their natural appetite 8 2 Somers's Tracts, 162. 9 5 Parl. Hist. 250. 2 State Trials, 519. 10 Comm. Journ. May 12, 1624. 6 Hume, 52. Increased influsition in the ence of the oppo commons. |