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acts of tyranny are not now to be anticipated, merely because they were committed in ancient times, when the checks and restraints upon government were adjusted less favourably to the maintenance of public liberties. If it were carefully borne in mind that the law military conforms to the civil law; that, if an arbitrary minister endeavours to employ the army for illegal purposes, there is a remedy in the civil courts; that the refusal to re-enact the military law would at once annihilate this engine of his power; that the number of the army depends entirely upon the legislature, and most especially upon that part of it which represents the people and has the exclusive authority over the soldiers' pay-it would at once be acknowledged that very little danger is to be apprehended from the mere employment of the military force, whilst it would be by no means difficult to prove that we should run the greatest risk by unduly diminishing it.*
PRÆMUNIRE is a species of offence more immediately affecting the king and his government, though not subject to capital punishment; it is called præmunire from the words of the writ preparatory to its prosecution; "præmunire facias A. B." that is, cause A. B. to be forewarned that he appear before us to answer the contempt wherewith he stands charged; which contempt is particularly recited in the preamble to the writ. It took its original from the exorbitant power claimed and exercised in England by the pope, which, even in the days of blind zeal, was too heavy for our ancestors to bear.
King Edward I., a wise and magnanimous prince, and justly styled the English Justinian, set himself in earnest to shake off this servile yoke. He would not suffer his bishops to attend a general council, till they had sworn not to receive the papal benediction. He made light of all papal bulls and processes; invading Scotland in defiance of one, and seizing the temporalities of his clergy, who, under pretence of another, refused to pay a tax imposed by parliament. He strengthened the statutes of mortmain, thereby closing the great gulf, in which all the lands of the kingdom were in danger of being swallowed up. And one of his subjects having obtained a bull of excommunication against another, he ordered him to be executed
*The above article is extracted from the Law Magazine, and is not only of itself a subject of considerable importance, and ought to be generally known, but it forms an excellent commentary on the preceding charge of lord chief justice Sir Nicholas Tindal, at Bristol.
as a traitor, according to the ancient law. And in the 35th year of his reign was made the first statute against papal provisions; being, according to Sir Edward Coke, the foundation of all the subsequent statutes of præmunire, which is ranked as an offence immediately against the king, because every encouragement of the papal power is a diminution of the authority of the crown.
In the writ for the execution of all these statutes, the words præmunire facias, being used to command a citation of the party, here denominated in common speech not only the writ, but the offence itself, of maintaining the papal power by the name of præmunire. The statute 26 Rich. II. c. 5, which enacts, "that whoever procures at Rome, or elsewhere, any translations, processes, excommunications, bulls, instruments, or other things which touch the king, against him, his crown and realm, and all persons aiding and assisting therein, shall be put out of the king's protection, their lands and goods forfeited to the king's use, and they shall be attached by their bodies to answer to the king and his council; or process of præmunire facias shall be made out against him, as in other cases of provisors."
The penalties of præmunire seem to have kept the depressing power of the pope within the proper bounds of their original institution, up to the reign of Elizabeth; but, they being pains of very considerable consequence, it has been thought fit to apply the same to other heinous offences, some of which bear more and some less relation to this original offence, and some no relation whatever.
To molest the possessors of abbey lands granted by parliament to Henry VIII. and Edward VI. is a præmunire.
The offence of acting as a broker or agent in any usurious contract, where above ten per cent. interest is taken, is a præmunire.
To obtain any stay of proceedings, other than by arrest of judgment, or writ of error, in any suit for a monopoly, is likewise a præmunire.
To obtain an exclusive patent for the sole making or importing of gunpowder or arms, or to hinder others from importing them, is also a præmunire. On the abolition by statute 12 Char. II. c. 24, of purveyance, and the prerogative of pre-emption, or taking any victual, beasts, or goods, for the king's use at a stated price, without consent of the proprietor, the exertion of any such power for the future was declared to incur the penalties of præmunire. To assert maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legislative authority without the king, is declared a pramunire. To send any subject out of this realm a prisoner into any parts beyond the seas, is a præmunire, and also a breach of the habeas corpus act, and is incapable of the king's pardon, besides other heavy penalties. Persons of eighteen years of age, refusing to take the new oaths of allegiance, as well as supremacy,
upon tender by the supreme magistrate, are subject to the penalties of a præmunire. Sergeants, councillors, proctors, attorneys, and all officers of courts, practising without having taken the oaths of allegiance and supremacy, and without having subscribed the declaration against popery, are guilty of a præmunire, whether the oaths be tendered or not. To assert, maliciously and directly, by preaching, teaching, or advisedly speaking, that the male descendants of James II. or any person other than according to the acts of settlement and union, hath any right to the throne of these kingdoms, or that the king cannot make laws to limit the descent of the crown; such preaching, teaching, or advisedly speaking, is a præmunire, and writing, printing, or publishing the same doctrines amounted to high treason. If the peers of Scotland, when assembled to elect their sixteen representatives in the British parliament, shall presume to treat of any other matter save only the election, they incur the penalties of a præmunire. All unwarrantable undertakings by unlawful subscriptions, then commonly known by the name of bubbles, subject the parties to the penalties of a præmunire.
All such as knowingly and wilfully solemnize, assist, or are present at any forbidden marriage of such of the descendants of the body of George II. as are, by that act, prohibited from contracting matrimony without consent of the crown, incur the penalties of the statute of præmunire.
Its punishment may be gathered from the foregoing statutes, which are thus shortly summed up by Sir E. Coke; "that from the conviction the defendant shall be out of the king's protection, and his lands and tenements, goods and chattels forfeited to the king, and that his body shall remain in prison at the king's pleasure, or during life; which is the same thing, as the king by his prerogative may at any time, remit the whole or any part of the punishment, except in the case of transgressing the statute of Habeas Corpus. Such delinquent, though protected as part of the public from public wrongs, cannot bring an action for any private injury, how atrocious soever, being so far out of the protection of the law, that it will not guard his civil rights, nor remedy any grievance, which he as an individual may suffer. And no man, knowing him to be guilty, can with safety give him comfort, aid, or relief."
In selecting and abridging the account of the British and Scottish parliaments, I have given not only the spirit of the authors quoted at the conclusion of the articles, but their very words, and have endeavoured to
observe the utmost impartiality. Although the Bills for the Reform of Parliament have given the British empire, on whose widely extended dominions the sun never sets, a new constitution, yet as many parts of the old fabric still remain, I have given, in the following work, an account of those institutions which have been the means, under God, of rendering this empire happy and glorious at home, and the envy and admiration of the world abroad,
This royal throne of kings, this scepter'd isle,
This fortress, built by Nature for herself,
Richard II. Act II. Scene 1.
In marking the origin of parliaments, I have chiefly followed the authority of Judge Blackstone; but it may be remarked, that much difference of opinion exists among lawyers of the greatest reputation upon this interesting subject; but however much constitutional writers differ from each other in their opinions respecting the institutions of our Saxon ancestors, (whose tenacious adherence to ancient customs and landmarks is proverbial,) they all agree in affirming, that there was no such thing as a house of commons in existence previous to the year 1265, which was the 49th of Henry III.; for the Saxon Witenagemotte cannot be considered as a parliament in the sense in which we understand that word. Henry III. was the first English sovereign who summoned by writ, knights and burgesses, as representatives of their counties and boroughs, to serve him in parliament, a service which was then, and for may ages afterwards, considered as a grievous burden, a heavy expense, and a great hardship; indeed it frequently happened that the boroughs were obliged to allow their representatives a sum of money to defray the expenses of their attendance in parliament. At its first institution, parliament met in one house or chamber, the three estates, viz. the Prelates, the lay Peers, and the Commons, sat and voted together as one body; but this proving inconvenient, and the commons requiring frequently to retire for consultation, about such affairs as more immediately affected their own estate, their final separation and meeting in another house by themselves, was effected about the year 1295, in the reign of Edward I. From that period to the grand rebellion, their importance gradually increased, and since the Revolution of 1688, the
crown has from time to time conceded to the house of Commons that power and authority which constitutes its present greatness. The Scottish parliaments were constituted similarly to the English; the last parliament which sat in Scotland, was that which enacted the incorporating union between the two kingdoms, and before the Revolution of 1688; it also contained three estates, viz. the spiritual and lay peers, and the commons, who all sat and voted together in one house; but at the Revolution, the convention parliament, which met at Edinburgh in April, 1689, deprived the bishops of their seats, and there remained only two estates in that convention which offered the crown of Scotland to the prince and princess of Orange, and of that parliament which passed the act of union, and thereby voted their own annihilation.
The following observations are extracted from Professor Park's "Lectures on the Theory and Practice of the Constitution," delivered at King's College, London, in the commencement term.
"The accredited theory of the Constitution assigns the business of legislation to parliament indiscriminately; it does not confer the right of introducing bills of projects of law, nor yet subjects of debate, upon any particular person or persons; and even in point of practice, bills may be introduced, and motions made, by any individual member of the legislature who chooses; that is to say, by any one of six hundred and fifty-eight individuals in the house of Commons, and four hundred and eight in the house of Lords; and such bills are precisely of the same validity, if passed, as bills introduced by the executive government, or king's ministers. We have only to apply this theory to the business of the administrative government, and to suppose that government carried on by the undisturbed means, which this theory of the constitution has pointed out,-legislation casually and promiscuously originated,-to see with one glance, that a greater absurdity never entered the heart of man. Administrative government has become the most profound and the most complicated of all sciences. From the extent and intricacy of its materials, it mates and masters the most powerful intellects; while from that very extent, and the inability of the human mind to grasp all its relations and dependencies, or to contemplate more than a portion of the whole field, that portion with which the particular observation or experience of each has made him most conversant, it furnishes room for a more endless diversity and gradation of opinion, than is to be found in any other science founded upon induction. Now in all sciences, in medicine, in mathematics, in chemistry, in astro nomy, in law, we find not only the most various measures of capacity and power, among the professors, but we find in each, a very few minds capable of penetrating immeasurable distances beyond even the range of the highest order of ordinary minds, and upon whom, in each of those sciences, an ascendency or superiority devolves, which is strictly consonant to the nature