Chapter 3
The History of England from the Accession of James II by Thomas Babington Macaulay. Book I. Chapter I. Part III. That the political institutions of England were, at this early period, regarded by the English with pride and affection, and by the most enlightened men of neighbouring nations with admiration and envy, is proved by the clearest evidence. But touching the nature of these institutions there has been much dishonest and acrimonious controversy. The historical literature of England has indeed suffered grievously from a circumstance which has not a little contributed to her prosperity. The change, great as it is, which her polity has undergone during the last six centuries, has been the effect of gradual development, not of demolition and reconstruction.
The present constitution of our country is, to the constitution under which she flourished five hundred years ago, what the tree is to the sapling, what the man is to the boy. The alteration has been great, yet there never was a moment at which the chief part of what existed was not old. A polity thus formed must abound in anomalies. But for the evils arising from mere anomalies we have ample compensation. Other societies possess written constitutions more symmetrical, but no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity.
This great blessing, however, has its drawbacks, and one of those drawbacks is that every source of information, as to our early history, has been poisoned by party spirit. As there is no country where statesmen have been so much under the influence of the past, so there is no country where historians have been so much under the influence of the present. Between these two things, indeed, there is a natural connection. Where history is regarded merely as a picture
of life and manners, or as a collection of experiments from which general maxims of civil wisdom may be drawn, a writer lies under no very pressing temptation to misrepresent transactions of ancient date. But where history is regarded as a repository of title-deeds, on which the rights of governments and nations depend, the motive to falsification becomes almost irresistible. A Frenchman is not now impelled by any strong interest, either to exaggerate or to underrate,
the power of the kings of the house of Valois. The privileges of the states-general, of the states of Brittany, of the states of Burgundy, are to him matters of as little practical importance as the constitution of the Jewish Sanhedrim, or of the Amphictionic Council. The gulf of a great revolution completely separates the new from the old system. No such chasm divides the existence of the English nation into two distinct parts.
Our laws and customs have never been lost in general and irreparable ruin. With us, the precedents of the Middle Ages are still valid precedents, and are still cited, on the gravest occasions, by the most eminent statesmen. For example, when King George III was attacked by the malady which made him incapable of performing his regal functions, and when the most distinguished lawyers and politicians differed widely as to the course
which ought, in such circumstances, to be pursued, the Houses of Parliament would not proceed to discuss any plan of regency till all the precedents which were to be found in our annals, from the earliest times, had been collected and arranged. Committees were appointed to examine the ancient records of the realm. The first case reported was that of the year 1217. Much importance was attached to the cases of 1326, of 1377, and of 1422, but the case which was
was justly considered as most in point, was that of 1455. Thus, in our country, the dearest interests of parties have frequently been on the results of the researches of antiquaries. The inevitable consequence was that our antiquaries conducted their researches in the spirit of partisans. It is therefore not surprising that those who have written, concerning the limits of prerogative and liberty in the old polity of England, should generally have shown the
temper, not of judges, but of angry and uncandid advocates. For they were discussing, not a speculative matter, but a matter which had a direct and practical connection with the most momentous and exciting disputes of their own day. From the commencement of the long contest between the Parliament and the stewards, down to the time when the pretensions of the Stuarts ceased to be formidable, few questions were
practically more important than the question whether the administration of that family had, or had not, been in accordance with the ancient constitution of the kingdom. This question could be decided only by reference to the records of preceding reigns. Bracton and Fleta, the Mirror of Justice, and the Rolls of Parliament, were ransacked to find pretexts for the excesses of the Star Chamber on one side, and of the High Court of Justice
on the other. During a long course of years every Whig historian was anxious to prove that the old English government was all but Republican, every Tory historian to prove that it was all but despotic. With such feelings, both parties looked into the chronicles of the Middle Ages. Both readily found what they sought, and both obstinately refused to see anything but what they sought.
The champions of the Stuarts could easily point out instances of oppression exercised on the subject. The defenders of the Roundheads could as easily produce instances of determined and successful resistance offered to the Crown. The Tories quoted, from ancient writings, expressions almost as servile as were heard
from the pulpit of mainwaring. The Whigs discovered expressions as bold and severe as any that resounded from the judgment seat of Bradshaw. One set of writers adduced numerous instances in which kings had extorted money without the authority of Parliament. Another set cited cases in which the Parliament had assumed to itself the power of inflicting punishment on kings. Those who saw only one half of the evidence would have concluded that the
Plantagenets were as absolute as the sultans of Turkey. Those who saw only the other half would have concluded that the Plantagenets had as little real power as the doges of Venice, and both conclusions would have been equally remote from the truth. The old English government was one of a class of limited monarchies which sprang up in Western Europe during the Middle Ages, and which, notwithstanding many diversities, bore to one another a strong family likeness.
That there should have been such a likeness is not strange. The countries in which those monarchies arose had been provinces of the same great civilized empire, and had been overrun and conquered about the same time by tribes of the same rude and warlike nation. They were members of the same great coalition against Islam. They were in communion with the same superb and ambitious church. Their polity naturally took the same form. They had institutions
derived partly from imperial Rome, partly from papal Rome, partly from the old Germany. All had kings, and in all the kingly office became by degrees strictly hereditary. All had nobles bearing titles which had originally indicated military rank. The dignity of knighthood, the rules of heraldry, were common to all. All had richly endowed ecclesiastical establishments, municipal corporations enjoying large franchises, and senates whose consent was necessary to the
validity of some public acts. Of these kindred constitutions the English was, from an early period, justly reputed the best. The prerogatives of the sovereign were undoubtedly extensive. The spirit of religion and the spirit of chivalry concurred to exalt his dignity. The sacred oil had been poured on his head. It was no disparagement to the bravest and noblest knights to kneel at his feet. His person was inviolable. He alone was entitled to convoke
the estates of the realm. He could at his pleasure dismiss them, and his assent was necessary to all their legislative acts. He was the chief of the executive administration, the sole organ of communication with foreign powers, the captain of the military and naval forces of the state, the fountain of justice, of mercy, and of honour. He had large powers for the regulation of trade. It was by him that money was coined, that weights and measures were fixed, that marts and havens were appointed.
His ecclesiastical patronage was immense. His hereditary revenues, economically administered, sufficed to meet the ordinary charges of government. His own domains were of vast extent. He was also feudal lord paramount of the whole soil of his kingdom, and, in that capacity, possessed many lucrative and many formidable rights, which enabled him to annoy and depress
those who thwarted him, and to enrich and aggrandize, without any cost to himself, those who enjoyed his favour. But his power, though ample, was limited by three great constitutional principles, so ancient that none can say when they began to exist, so potent that their natural development, continued through many generations, has produced the order of things under which we now live. First, the king could not legislate without the consent of his Parliament.
Secondly, he could impose no tax without the consent of his Parliament. Thirdly, he was bound to conduct the executive administration according to the laws of the land, and, if he broke those laws, his advisers and his agents were responsible. No candid Tory will deny that these principles had, five hundred years ago, acquired the authority of fundamental rules. On the other hand, no candid Whig will affirm that they were, till a later period, cleared from all ambiguity,
or followed out to all their consequences. A constitution of the Middle Ages was not, like a constitution of the 18th or 19th century, created entire by a single act, and fully set forth in a single document.
It is only in a refined and speculative age that a polity is constructed on a system. In rude societies, the progress of government resembles the progress of language and of versification. Rude societies have language, and often copious and energetic language, but they have no scientific
grammar, no definitions of nouns and verbs, no names for declensions, moods, tenses, and voices. Rude societies have versification, and often versification of great power and sweetness, but they have no metrical canons, and the minstrel whose numbers, regulated solely by his ear, or the delight of his audience, would himself be unable to say of how many dactyls and trochies each of his lines consists. As eloquence exists before syntax, and song before prosody,
so government may exist in a high degree of excellence long before the limits of legislative, executive, and judicial power have been traced with precision. It was thus in our country. The line which bounded the royal prerogative, though in general sufficiently clear, had not everywhere been drawn with accuracy and distinctness. There was, therefore, near the border some debatable ground on which incursions and reprisals continued to take place, till, after ages of strife, plain and durable landmarks were at length set up. It may be instructive to note in what way, and to what extent, our ancient sovereigns were in the habit of violating the three great principles by which the liberties of the nation were protected.
No English king has ever laid claim to the general legislative power. The most violent and imperious Plantagenet never fancied himself competent to enact, without the consent of his great counsel, that a jury should consist of ten persons instead of twelve, that a widow's dower should be a fourth part instead of a third,
that perjury should be a felony, or that the custom of gavelkind should be introduced into Yorkshire. But the king had the power of pardoning offenders, and there is one point at which the power of pardoning and the power of legislating seem to fade into each other,
and may easily, at least in a simple age, be confounded. A penal statute is virtually annulled if the penalties which it imposes are regularly remitted, as often as they are incurred. The sovereign was undoubtedly competent to remit penalties without limit.
He was therefore competent to annul virtually a penal statute. It might seem that there could be no serious objection to his doing formally what he might do virtually. Thus, with the help of subtle and courtly lawyers, grew up, on the doubtful frontier which separates executive from legislative functions, that great anomaly known as the dispensing power. That the king could not impose taxes without the consent of Parliament
is admitted to have been, from time immemorial, a fundamental law of England. It was among the articles which John was compelled by the barons to sign. Edward I ventured to break through the rule, but, able, powerful, and popular as he was, he encountered an opposition to which he found it expedient to yield. He covenanted accordingly in express terms, for himself and his heirs,
that they would never again levy any aid without the assent and good-will of the estates of the realm. His powerful and victorious grandson attempted to violate this solemn compact, but the attempt was strenuously withstood. At length the Plantagenets gave up the point in despair. but, though they ceased to infringe the law openly, they occasionally contrived by evading it
to procure an extraordinary supply for a temporary purpose. They were interdicted from taxing, but they claimed the right of begging and borrowing. They therefore sometimes begged, in a tone not easily to be distinguished from that of command, and sometimes borrowed with small thought of repaying. But the fact that they thought it necessary to disguise their exactions under the names of benevolences and loans, sufficiently proves that the authority of
the great constitutional rule was universally recognized.
