« 上一頁繼續 »
probably did not extend to all legislative purposes, but only to that of granting aid. Under Edward II, the commons began to annex petitions to the bills by which they granted subsidies: this was the dawn of their legislative authority. Under Edward III, they declared they would not, in future, acknowledge any law to which they had not expressly assented. Soon after this, they exerted a privilege, in which consists, at this time, one of the great balances of the Constitution: they impeached and procured to be condemned some of the first ministers of state. Under Henry IV, they refused to grant subsidies before an answer had been given to their petitions. In a word, every event of any consequence was attended with an increase of the power of the commons; increases, indeed, but slow and gradual, but which were peaceably and legally effected, and were the more fit to engage the attention of the people, and coalesce with the ancient principles of the Constitution. Under Henry V. the nation was entirely taken up with its wars against France; and in the reign of Henry VI. began the fatal contests between the houses of York and Lancaster. The noise of arms alone was now to be heard: during the silence of the laws already in being, no thought was had of enacting new ones; and, for thirty years together, England presents a wide scene of slaughter and desolation. At length under Henry VII, who, by intermarriage with the house of York, united the pretensions of the two families, a general peace was re-established, and the prospect of happier days seemed to open on the nation. But the long and violent agitation under which it had laboured, was to be followed by a long and painful recovery. Henry assuming the throne with sword in hand, and in a great measure as a conqueror, had promises to fulfil, as well as injuries to avenge. In the mean time, the people, wearied out by the calamities they had undergone, and longing only for
repose, abhorred even the idea of resistance; so that the remains of an almost exterminated nobility beheld themselves left defenceless, and abandoned to the mercy of the sovereign. The commons, on the other hand, accustomed to act only a second part in public affairs, and finding themselves berest of those who had hitherto been their leaders, were more than afraid to form of themselves an opposition. Placed immediately, as well as the lords, under the eye of the king, they exposed themselves to the same dangers. Like them, therefore, they purchased their personal security at the expense of public liberty; and, in reading the history of the first two kings of the house of Tudor, we imagine ourselves reading the relation given by Tacitus of Tiberius and the Roman Senate(a)—“Quanto quis illustriori tanto magis Jalsi ac festinantes.” § 20. The earliest statutes extant in the printed statutes of England, are those of Henry III.(b) The sources of information begin at this period to be more authentic. We have in this reign some statutes enacted by the legislature, besides the charter of liberties and the charter of the forest. These statutes are either to be found in the rolls in the tower, or in some memorials which have delivered them down to us as acts of parliament, and, therefore, their genuineness is not to be questioned. Many parliaments were holden in this long reign, and it has been thence inferred, that many acts of course have passed which have not reached our time, though it is remarkable that Bracton, except in four or five instances, quotes no statutes but those which are now extant. So destructive has the hand of time been, that only two of those few we have, are to be found on
(a) De Lolme, 21 to 28; 33 to 35. (b) Dwarris, part 2. ch. 10, p. 626.
record. The only statutes of this reign to be found on the statute roll, are magna charta and charta de foresta. The rest are not on record, but only preserved in books and memorials. Such are the statutes of Merton and Marlbudge. This distinction of ancient documents has given rise to the following position : that notwithstanding the record itself be not extant, yet general statutes made within the time of memory, that is, since the first Richard, do not lose the force of statutes, if any authentic memorials of there being such are to be found in books, seconded with a general received tradition attesting and approving the same. In conformity, perhaps, to this favourable presumption it has become a rule, that courts are to take notice of general acts of parliament, without pleading them; for statutes are never to be put in issue of nul tiel record, but are to be tried by the courts, and if there be any difficulty or uncertainty, the Judges are to make use of ancient copies, transcripts, books, pleadings, or any other memorials, to inform themselves. In 8 Co. R. 28, it was resolved, that against a general act of parliament, or such an act whereof the judges and officers ought to take notice, the other party cannot plead nul tiel record, for of such an ‘act the judges ought to take notice; and in that case it was said, “ God forbid if the record of such act be lost, or consumed by fire or other means, that it should tend to the general prejudice of the commonwealth, but rather, although it be lost or consumed, the judges, either by the printed copy or by the record in which it is pleaded, or by some other means, may inform themselves of it.”
The statutes of this reign, which are now in being are to be found in the common editions of the statutes. The statutes from Magna Charta down to the end of Edward II., including also some, which because their period is not ascertained, are termed in certi temporis, are sometimes called the Vetera Statuti. Those from the begin
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 power of 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;(b) 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
(a) Stev. Eng. Con. Vol. ii., ch. 4, pp. 827, 828. (b) Stev. Eng. Con., fol. 2, ch. 4, p. 531.