Its limita tion by Parliament. Decision that Rex is Lex. for coast defence. He further admitted that the king was entrusted with the defence of the country and was judge of the best means for securing that defence. He concedes to the Crown that as the care and provision of the law of England extends in the first place to foreign defence; and secondly, lays the burden upon all; and for aught I have to say against it, it maketh the quantity of each man's estate the rule whereby this burden is to be equally proportioned upon each person; so likewise hath it in the third place, made his Majesty sole judge of dangers from foreigners and when and how the same are to be prevented; and to come nearer, hath given him power by writ under the Great Seal of England, to command the inhabitants of each county to provide shipping for the defence of the kingdom, and may by law compel the doing thereof.' This was to admit a great deal. But St. John goes on to show that while the king was judge of the policy to be pursued in meeting dangers, Parliament was the proper instrument by which supplies were to be obtained. The only ground for dispensing with a Parliamentary grant and resorting to arbitrary taxation would be the imminence of danger, and Hampden's counsel had no difficulty in showing not only that no danger was imminent, but that no such imminent danger was alleged in the writ. Holborne carries the matter further, and limits, more closely than St. John had done, the discretionary powers of the Crown. If there be a storm or leak in the ship, that the danger be actual, it is justifiable for the master to throw out the goods; but if he sees a cloud arise and out of fear of a storm he threw out the goods, I doubt on a jury which way this will go. The judges, by a majority of seven to five, decided in favour of the Crown, some, as Finch and Weston, on the ground that the king was constrained or might be constrained by the necessities of the defence of the kingdom to raise money without waiting for a Parliament; others, alleging the superiority of the king to the law. The opinion of these last may be taken in the words of Berkeley, 'the law is of itself an old and trusty servant of the king's: it is his instrument and means which he useth to govern his people by. I never heard nor read that Lex was Rex, but it is common and most true that Rex is Lex, for he is Lex loquens, a living, a speaking, an acting law 1' In this matter of taxation, as fifty years afterwards in the case of the dispensing power, judges were found to maintain that for taking the subject's money Acts of Parliament were unnecessary, as later that for imposing general rules of conduct, Acts of Parliament were precarious; for the king, the source of all law, might if he chose, do without them or set them aside. The Long Parliament, by Statute 16 Car. I, c. 14, declared the judgment in the case of shipmoney to be contrary to law, and enacted the observance of the provisions of the Petition of Right, and the Bill of Rights enacts— That the levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal?' difficulties It is noticeable that throughout the controversies between Practical Crown and Parliament in the seventeenth century the same of the difficulty recurs and presents itself under different aspects, to question. such of the parties as were not wholly engrossed in the technicalities of the discussion. There must be some person or body in the State capable of acting promptly in cases of emergency. A Parliament if not sitting has to be called, and is at best an unwieldy body for the purpose of dealing with present and pressing difficulties. In the seventee th century the choice lay between the submission of such difficulties, as they arose, to Parliament, and the assignment of great and dangerous power to the Crown. And apart from the danger to liberty of entrusting 1 State Trials, iii. 1098. 2 I Will. & Mary, st. 2, c. 2. of execu the Crown with the powers claimed for it by its advocates there was a practical inconvenience. If a king, animated with the best intentions, persistently blundered in the exercise of his discretion, there was no remedy short of a revolution. Our cabinet system is the solution of the puzzle of the seventeenth century: we fix responsibility upon a group of ministers who can be removed if they fail; we do not fear lest they should threaten our liberties, and at the same time we expect that the servants of the Crown and the nation will not shrink from responsibility if occasion should arise when action must be taken without waiting to secure the acquiescence of Parliament. § 4. Influence of the Executive on the Legislature. In the previous sections of this chapter I have described attempts made by the Crown to resume those functions in the State which had once belonged to the Crown in Council Influence before Parliament grew up alongside the older institution, before the executive and legislature had become distinct legislature. bodies with appropriate duties. But I must not leave this part of my subject without noting other modes by which the executive has endeavoured to control the legislature, not by interfering with its duties but by influencing its action. tive on Influence of the Crown upon the Commons. For when the position of Parliament in the constitution had become defined; when the participation of the Commons in the imposing of taxes and the making of laws bad become recognised as necessary, if taxes were to be paid and laws obeyed; when the king's part in legislation had been reduced to an expression of assent or dissent; it became worth the while of the king and his ministers to consider how far their wishes could be effected by the instrumentality of Parliament, and in particular of the Commons. The modes adopted in view of this end may be said to with the tion of the dom of have passed through three stages. First we have the Dealings attempts of the Tudors to obtain a subservient House of constituCommons by the creation of constituencies and the manage- House; ment of elections. The first Stuarts, with the exception of the attempt of James to form a Court party in Parliament, tried methods more in accord with their high notions of prerogative and their contempt for constitutional forms. They influenced debate, so far as they tried to influence it, with freeby interference with freedom of speech; but they preferred speech, to dispense with Parliamentary forms and to fall back on the independent action of the Crown described in the earlier sections of this chapter. The third stage commences with with integrity of the Restoration: the king could no longer venture to create members. new constituencies nor to interfere directly with freedom of speech in Parliament; he addressed himself to the corruption of individual members, by places, by pensions, and by bribery. After the Revolution this method became more frequent and systematic as the House of Commons increased in power with no corresponding increase in responsibility. The art of Parliamentary management, as we shall have to note shortly, attained its perfection in the fifty years preceding the concession of independence to the American Colonies. The influence exercised by the Tudor sovereigns upon the House of Commons was of two kinds, the creation or restoration of constituencies designed to be under the influence of the Crown, and instructions general or special addressed to the sheriffs or to electors conveying recommendations or commands about the elections. The additions made by Henry VIII to the representation Creation of boroughs. of the country are free from the suspicion of any sinister motive. One cannot say the same of the twenty-two new members added in the reign of Edward VI. Fourteen of these were returned by seven Cornish boroughs, and from the number of persons represented and the qualifications of the electors in the year 1816 it may be concluded that with all due allowance for changes in the fortunes of these boroughs Interference with they never were expected to be anything but corrupt. The Bossiney, mayor and freemen chosen by the mayor . who need not reside 9 62 Grampound, mayor, recorder, aldermen and freemen 42 St. Michael's, portreeve, lord of the manor and in- 38 18 · 9 Mary added or revived fourteen boroughs, Elizabeth, thirtyone1. The clear intention of these additions was to form a court party in the House of Commons, and to obtain seats for friends of the Crown or its ministers, placemen who would vote as they were told but who had no local interest, such as would ensure their return, unless constituencies were made or found for them. The creation of new boroughs, or the revival of old ones, elections. would not, however, have been of much use if the Court had not taken active steps to fill them with suitable representatives. This was done either by general directions to the returning officers for the election of members of a certain character, or by express recommendations of individuals. A circular addressed to the sheriffs in 1553 is an illustration of both forms of interference. It bids the sheriffs give notice to the electors that they should, in the first instance, choose residents of knowledge and experience, but that, if the Privy Council should make special recommendation of men of learning and wisdom, such direction should be regarded. Of the boroughs added by Mary ten were newly enfranchised, of those added by Elizabeth twenty-five. About this time members habitually ceased to press for their wages, and this among other reasons inclined boroughs which had ceased to return members to ask for a revival of their privileges. |