Page images
PDF
EPUB

[Corpus Act (h). To these succeeded the Declaration of Rights delivered by the lords and commons to the Prince and Princess of Orange (13th February, 1689), and afterwards (16th December, 1689) enacted in parliament, when they became king and queen, as the Bill of Rights, which concludes in these remarkable words, -“ And they do claim, “ demand, and insist upon, all and singular the premises, as

their undoubted rights and liberties(i). This enactment recognizes all and singular the rights and liberties, [asserted and claimed in the Bill of Rights, to be the “ true, antient, and indubitable rights of the people of this s kingdom.” Lastly, these liberties were again asserted at the commencement of the eighteenth century, in the Act of Settlement, a statute passed in the twelfth and thirteenth year of the reign of William III. (1700); and at the same era, some new provisions were added for better securing our religion, laws, and liberties (k), all which the statute declares to be the “ birthright of the “ people of England,” according to the antient doctrine of the common law (1).]

(h) The Habeas Corpus Act, 1679, was extended by the Habeas Corpus Act, 1816.

(i) By the Bill of Rights, it is asserted :

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority without consent of parliament, is illegal.

2. That the pretended power of dispensing with laws, or with their execution, by regal authority, as it had been assumed and exercised of late, is illegal.

3. That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.

4. That levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, or for longer time or irt other manner than the same is or shall be granted, is illegal. .

5. That it is the right of the subject to petition the king, and all commitments and prosecutions for such petitioning are illegal.

6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with

consent of parliament, is against law.

7. That the subjects which are protestants may have arms for their defence, suitable to their conditions, and as allowed by law.

8. That the election of members of parliament ought to be free.

9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.

10. That excessive bail ought not to be requireil, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. (This provision, respecting the qualification of jurors in cases of treason, was, however, repealed by 6 Geo. 4 (1825), c. 50.)

12. That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and yoid.

13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently

Of the rights and liberties thus asserted, there are two which demand our particular notice, namely, (1) The free dispensation of justice by the ordinary tribunals ; and (2) The right of petitioning for the redress of grievances.

1. The free dispensation of justice by the ordinary tribunals.

.[The law being the supreme arbiter of every man's life,

(k) The Act of Settlement provides

1. That whosoever shall here after come to the possession of this crown shall join in communion with the Church of England as by law established.

2. That in case the crown and imperial dignity of this realm shall hereafter come to any person, not being a native of this kingdom of England, this nation be not obliged to engage in any war for the defence of any dominions or terri. tories which do not belong to the crown of England, without the consent of Parliament.

3. That judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established ; but upon the address of both houses of parliament, it may be lawful to remove them.

4. That no pardon under the great seal of England, be pleadable to an impeachment by the commons in parliament. *** Besides the above provisions, this Act contained others,

1. Against the monarch going out of the United Kingdom, without consent of parliament. (Repealed by 1 Geo. 1, st. 2 (1715), (, 51.)

2. As to the matters to be transacted in the privy council. (Repealed by 4 & 5 Ann. c. 20 (1705), s. 27.) 3 . As to aliens naturalized or made denizens. (For the present law on this subject, vide sup. p. 440.)

4. As to officers of the Crown sitting in parliament. (See as to this, sup. pp. 399, 400.)

(1) Plowd. 55.

[liberty, and property, the courts must at all times be open to the subject, and the law be duly administered therein. The emphatical words of Magna Carta (m), spoken in the person of the king, who in judgment of law, says Sir E. Coke, is ever present and repeating them in all his courts, are these :-Nulli vendemus, nulli negabimus, aut differemus, rectum aut justitiam ; “and, therefore, every “ subject for injury done to him by any other subject, be “ he ecclesiastical or temporal, may take his remedy by “ the law, and have justice and right for the injury done “ to him, freely without sale, fully without any denial, and “ speedily without delay" (n). And it would be endless to enumerate all the affirmative Acts of Parliament, wherein justice is directed to be done according to the law of the land.

It may be proper, however, to mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. Thus, it is ordained, by Magna Carta (m), that no freeman shall be outlawed,--that is, put out of the protection and benefit of the laws,- but according to the law of the land. By the 2 Edw. III. (1328) c. 8, and 12 Rich. II. (1388), it is enacted that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law, or to disturb or delay common right; and though such commandments should come, the judges shall not cease to do right,—which is also, by the 20 Edw. III. (1316) c. 4, made a part of their oath. By the Bill of Rights, 1689, it is declared, that the pretended power of suspending laws, or of dispensing with laws, or with the execution of laws, as it had been of late exercised, by regal authority and without consent of parliament, is illegal.

The method of proceeding cannot, any more than the substance of the law, be altered but by parliament ; for

[ocr errors][merged small][ocr errors][ocr errors]

[if once these outworks were demolished, there would be an inlet to all manner of innovations in the body of the law itself. The king, it is true, may erect new courts of justice, but then they must proceed according to the old established forms of the common law (0); for which reason it is declared in the 16 Car. I. (1640) c. 10, s. 3 (on the dissolution of the Court of Star Chamber) that neither his majesty, nor his privy council, have any jurisdiction, power, or authority, by English bill, petition, articles, or libel (which were the courses of proceeding in the Star Chamber, borrowed from the civil law), or by any other arbitrary way whatsoever, to examine or draw into question, determine, or dispose of the lands or goods of any subjects of this kingdom, but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of law.] To the head now under consideration must also be referred the provisions which have been made to secure the dignity and political independence of the judges ; with which object in view, it was enacted, by the Act of Settlement, 1700, that the judges' commissions should be made, not, as formerly, durante bene placito, but during good behaviour, quamdiu se bene gesserint, but that it might be lawful to remove them on the address of both houses of parliament. And afterwards, by the 1 Geo. III. (1761) c. 23, the judges were continued in their offices notwithstanding any demise of the crown, and their full salaries were also absolutely secured to them during the continuance of their commissions.

2. The right of petitioning for the redress of grievances.

[In Russia, there was a law of the Czar Peter, that no subject might petition the throne till he had first petitioned two different ministers of state ; and in case he obtained justice from neither, he might then petition the prince, but upon pain of death if found to be in the wrong (p). But in

(p) Montesquieu, Lois xii. 26.

Esprit

des

(0) As to the power of the Crown at the present day to create new courts, see Anson, Law and Custom, vol. ii., pp. 449–451.

[England the restrictions which are laid upon petitioning are of a nature extremely different ; for, while they promote the spirit of peace, they in no way check the freedom of petitioning. Care only is taken, lest, under the pretence of petitioning, the subject be guilty of tumult ; for tumultuous petitioning is a criminal offence (9).

The prerogatives of the king are now to be considered. And these are either direct, or incidental ; the direct being such substantial part of the royal character and authority, as spring from the king's political person, without reference to any extrinsic circumstance, and the incidental being such as exempt the Crown from the general rules which are established for the rest of the community.

The direct or substantive prerogatives are divided into three kinds; being such as regard, first, the royal dignity; secondly, the royal authority; and, thirdly, the royal income. These three prerogatives have been considered necessary to secure reverence to the king's person, obedience to his commands, and an affluent supply for the ordinary expenses of his government. In the present chapter we shall consider only the two first, reserving the third for a subsequent chapter. And we may here observe that the feudal writers distinguished the royal prerogatives into the majora and the minor regalia, or the greater and the lesser prerogatives ; and that the greater extended to the royal character and royal authority, while the lesser extended to the royal revenue (r).

First, then, of the ROYAL DIGNITY.— The law ascribes to the king, in his high political character, not only large powers and emoluments, which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature ; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater

(q) 13 Car. 2 (1661), c. 5; Bill of (r) Peregrin. De Jure Fisc. 1. 1, Rights, 1689, and Act of Settle. ch. 1, num. 9. ment, 1700. Vide post, bk. vi.

« EelmineJätka »