Quoted in the Oxford Dictionary s.v. “constitution.”
Rights of Man, in The Complete Works of Thomas Paine (London), pp. 302–3, 370.
An Appeal from the New to the Old Whigs (1791), in The Works of the Right Honourable Edmund Burke (1855), III, p. 81.
Ibid., p. 13.
A Dissertation upon Parties (1733–34), in The Works of Lord Bolingbroke (1841), II, p. 88.
Ibid., p. 105. The Septennial Act was defended by its supporters as the exercise of an extraordinary rather than an ordinary power of parliament. The Jacobite rising in 1715, it was held, had created a national emergency in which the very safety of the state depended upon the postponement of a parliamentary election. As the judges of Charles I had justified the royal prerogative in the levy of ship money, so the Whigs now justified an extension of parliament’s power by misquotation of Cicero’s Salus populi suprema lex esto, turning his esto into an est, and perverting the mere exhortation addressed to the commander of an army in the field into a general maxim of arbitrary government. The argument for emergency powers is not an unsound one—far from it; but it becomes a grave menace to individual liberty when “the sole judge, both of the danger, and when and how the same is to be prevented, and avoided,” is a king; and may be such even when the sole judge is a representative assembly; the more so if only a partisan, a corrupt, or an “unreformed” one. John Selden noticed this substitution of est for the esto of Cicero’s maxim and deplored its misuse in his day to justify absolutism under pretext of national emergency. He mistook it, however, for an extract from the XII Tables. “There is not any thing in the World more abus’d then this Sentence Salus populi suprema lex esto, for wee apply it, as if wee ought to forsake the knowne law when it may bee most for the advantage of the people, when it meanes no such thing: for first, tis not salus populi lex est, but esto . . .” ( Table Talk, s.v. “People,” folio 56b). Selden’s strictures would probably have been even more severe if he had known that the maxim was applied originally by Cicero to a military commander alone, and then only when he was actually in the field: militiae, but never domi (Cicero, De Legibus, lib. III, cap. 3, sec.8).
Others besides Selden in his time made the same mistake of attributing this important maxim to the XII Tables instead of to Cicero. See, for example, Richard Zouche’s Elementa Jurisprudentiae (Oxford, 1636), part IV, p. 55; William Fulbecke, A Direction or Preparative to the Study of the Laws (London, 1620), folio 2; Bacon, Essays, Of Judicature. Bacon, as many others, omits the verb altogether, but evidently implies an est, not an esto. Serjeant Maynard, a century after Bacon, has esto instead of est, but still thinks it comes from the XII Tables ( Parliamentary History, vol. V, col. 125).
Arbitrary government, possible under the Tudors as an ordinary power, became impossible under the Stuarts except as an extraordinary power warranted only by the doctrine of emergencies. This was one of the most momentous of the results of “the winning of the initiative” by the House of Commons, but in the later use of the phrase it was in process of becoming a justification of arbitrary government by a parliament as it had formerly justified royal absolutism.
The Septennial Act of 1716 is no doubt the first important application of the theory of parliamentary omnipotence after the Revolution, but within a dozen years of that event there are indications that the House of Commons is already beginning to think of itself not merely as the “full and free Representative of this nation,” which the Declaration of Rights in 1689 had declared it to be, but as a body with an inherent authority independent of the people who had chosen it. This appears as early as 1701 in the imprisonment by the House of the Kentish petitioners. That such a view was not shared by all, however, is indicated in many contemporary tracts, especially the remarkable “Legion’s Memorial,” so-called, probably written by Defoe ( Parliamentary History, V, 1252; Later Stuart Tracts, ed. George A. Aitken, pp. 179–86), which closes with the significant warning, “Englishmen are no more to be Slaves to Parliaments, than to Kings.” As the rhyming pamphleteer of the same year said,
The fundamental cleavage between such views as these and the new temper of the House of Commons appears clearly in the answer to these “Legion” pamphlets made by Sir Humphrey Mackworth ( Somers Tracts, XI, p. 176ff.) in which he declared “that the King, lords, and commons, united together, have an absolute supreme power to do whatever they shall think necessary or convenient for the public good of which they are the only judges, there being no legal power on earth to controul them. . . . The king, lords, and commons, therefore, as supreme, have superior powers, and the liberty of exercising them (according to the nature and constitution thereof) as they in their respective wisdoms and discretion shall think most conducing to the public good, without rendering any account for the same” (pp. 282–83). To this Defoe replied: “The people of England have delegated all the executive power in the King, the legislative in the King, Lords, and Commons, the sovereign judicative in the Lords, the remainder is reserved in themselves, and not committed, no not to their representatives: all powers delegated are to one great end and purpose, and no other, and that is the public good. If either or all the branches to whom this power is delegated invert the design, the end of their power, the right they have to that power ceases, and they become tyrants and usurpers of a power they have no right to” ( The Original Power of the Collective Body of the People of England Examined and Asserted [London, 1701], in The Works of Daniel DeFoe, by William Hazlitt [London, 1843], III, p. 9). It is the English form of the old controversy of the early glossators, whether the populus had conferred on the Emperor all its imperium and potestas unconditionally and irrevocably or not. For references to some further contemporary statements, see “The Theory of Balanced Government,” by Stanley Pargellis, The Constitution Reconsidered (New York, 1938), pp. 37–49.
The same conflicting views are brought out again in 1704–5 in the great case of Ashby v. White (Howell’s State Trials, XIV, col. 697ff.) in which the Lords declared, “It could not then [in 1628, when the Petition of Right was framed by the Commons] have been imagined, that the successors of those men would ever have pretended to an arbitrary and unlimited power of depriving their fellow subjects of their liberties” (col. 869). And they add, “This is the first time a House of Commons have made use of their having given the People’s money, as an argument why the prince should deny Writs of Right to the subject, obstruct the course of justice, and deprive them of their birth-rights” (col. 871).
Thus, as Bolingbroke said in 1733, the new conception of parliament’s power, “in less than twenty years,” “is grown or is growing familiar to us.” From this it was but a step to the denial, in the reign of George III, of the right of the electors of Middlesex to choose their own representatives; to that statement of the Lord Chancellor in 1766 that “every government can arbitrarily impose laws on all its subjects”; and to the assertion made about the same time in the Commons that that body alone in the enacting of law “constitutes the only people of England which the law acknowledges.” In these things Burke had ample warrant for his declaration in 1770, in his Thoughts on the Cause of the Present Discontents, that “the Distempers of monarchy were the great subjects of apprehension and redress, in the last century; in this, the distempers of parliament.” “This change from an immediate state of procuration and delegation to a course of acting as from original power, is the way in which all the popular magistracies in the world have been perverted from their purposes.” “To be a Whig on the business of an hundred years ago, is very consistent with every advantage of present servility.” For all the rest of the people of England, outside the Commons, there seemed no remedy left for such “distempers” and their deprivation of these ancient “birth-rights” except the resort to force; for from the fact that there was no appeal from their jurisdiction in controverted elections, the Commons were implying, as Burke says, that they were bound by no rule but their own discretion. That ultimate remedy of force the authors of the “Legion’s Memorial” had threatened to use as early as 1701; its actual use came first in 1775 by Englishmen in the colonies of North America; Englishmen were “no more to be slaves to Parliaments, than to Kings.” In England itself the threat of such slavery finally became a thing of the past through the reforms of the nineteenth century, the gradual growth of truly “responsible” government, and the adoption in law and practice of the principle of Sir John Holt’s dissenting opinion in the case of Ashby v. White.
Parliamentary History, XVI, p. 170. The italics are mine.
An Appeal from the New to the Old Whigs, Works, III, p. 30.
A Collection of State Tracts (London, 1705), I, p. 106.
Some Remarks upon Government (written in 1689), in State Tracts, I, pp. 159, 160, 162.
A Discourse Concerning the Nature, Power, and Proper Effects of the Present Conventions in Both Kingdoms (1689), in State Tracts, I, p. 220.
Some Political Writings of James Otis, ed. Charles F. Mullett, The University of Missouri Studies, p. 79.
Hezekiah Niles, The Principles and Acts of the Revolution in America, p. 19.
“What a word is that franchise? The lord may tax his villain high or low, but it is against the franchises of the land, for freemen to be taxed, but by their consent in parliament. Franchise is a French word, and in Latin it is Libertas” (1627; in Parliamentary History, II, p.237).
The Political Works of James I (Cambridge, Mass., 1918), p. 300.
Howell’s State Trials, II, 481, in which this speech is given as the speech of Yelverton. The notes of the debates in this parliament published by S. R. Gardiner show that the speech was made by Sir James Whitelocke ( Parliamentary Debates in 1610 [Camden Society, 1862], p. 103).
Candid Quarterly Review, no. 1 (February, 1914), p. 31.
The Letters and Speeches of Oliver Cromwell, ed. S. C. Lomas, II, p. 382.
In such cases in the past it has been challenged occasionally though without success. For example, just after the Restoration, when the abolition of feudal tenures was agitated, one opponent of the measure declared: “And if an Act of the Commons alone, or of the Lords alone, or of both together, cannot amount to an Act of Parliament, the King himself cannot grant away his Regality, or Power, or means of governing by his Charter, or any Act which he can singly doe, his concurrence with both the Lords and Commons can no more make an Act to confirme that which should not be done or granted, than his own grant or Charter could have done, or than if he and the House of Commons only had made an Act.” He then goes on to cite authorities for the principle “that the Superlative power of Parliaments above all but the King, is in some things so restrained, as it cannot enact things against Right Reason, or common Right, or against the Lawes of God or Nature” (Fabian Philipps, Esq., Tenenda non Tollenda [London, 1660], pp. 254–55). On the various interpretations of Coke’s statement of this principle in Bonham’s Case, see C. H. McIlwain, The High Court of Parliament (1910), p. 286ff.; W. S. Holdsworth, “Courts of Law and Representative Assemblies in the Sixteenth Century,” Columbia Law Review, XII (January, 1912), pp. 1–31; T. F. T. Plucknett, “Bonham’s Case and Judicial Review,” Harvard Law Review, XL (1926), pp. 30–70, S. E. Thorne, “Dr. Bonham’s Case,” Law Quarterly Review, October, 1938, pp. 543–52; S. E. Thorne, A Discourse upon the Exposicion Understandinge of Statutes (San Marino, Calif., 1942), Introduction.
Hoveden, for example, usually refers to Henry II’s Constitutions of Clarendon as leges ( Chronica Magistri Rogeri de Houedene [Rolls Series], I, pp. 220–22). Walter of Coventry calls them consuetudines quae inductae sunt contra ecclesias terrae suae in tempore suo ( The Historical Collection of Walter of Coventry [Rolls Series], I, p. 207).
Liebermann, Gesetze der Angelsachsen, I, p. 553.
Lib. II, cap. vii ( Glanvill De Legibus et Consuetudinibus Angliae, ed. George E. Woodbine [New Haven, 1932], p. 63).
Lib. XIII, cap. xxxii, p. 172.
Folio 312 B.
Folio 168 B.
Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. Am. Salmon (Paris, 1899–1900), § 958 (I, p. 486).
De Republica Libri Sex et Viginti, Authore D. Petro Gregorio Tholosano, lib. I, cap. i, §§ 16, 19 (Lugduni, 1609, pp. 4, 5).
Cicero, De Re Publica, I, p. 45 (69).
Ibid., II, p. 21 (37). When, early in the fifteenth century, Jean de Terre Rouge wishes to express the idea conveyed by Cicero’s constitutio or our “constitution,” he uses, not that word, but the phrase status publicus. A century later Seyssell translates this by the term La Police, for which Sleidan in his admirable Latin translation of Seyssell employs politia and not constitutio as its equivalent. So Bodin, in speaking of the constitution of a republic, refers to it as L’estat d’une Republique ( Les six livres de la republique, liv. II, chap. 11 [Paris, 1577, p. 200]). In his Latin version, it is status Rei-publicae (Paris, 1586, p. 189). It is true that Bernard de Girard Seigneur du Haillan, in the first edition of his important book, De L’Estat et Succez des Affaires de France, referring in the plural number to the limitations of government implied in Seyssell’s term La Police, applies to them the word constitutions, but it seems clear that he is using the term constitutions to connote not the modern conception of the whole of the complex governmental framework in a state as we do but its older sense, borrowed by the canonists from imperial Rome, by which he means only the several specific enactments of emperors or kings. If so this implies a reluctant acceptance on his part of the theory already asserted by Charles du Moulin and others that the existing limitations of monarchy contained in the customary law of France were originally effected by the enactments of former kings and not by the people more utentium. This is a far-reaching change from the medieval conception of Jean de Terre Rouge and Seyssell and the limitations of the English common law. It marks the longest theoretical step toward the absolutism which ultimately made the France of Louis XIV so different from England with its constitutionalism. Du Haillan’s statement is in part as follows: “. . . qui sont les mesmes mots de Claude de Seissel en son livre de la Monarchie de France, lesquels (bien qu’ils sentent l’antiquité) nous n’avons voulu changer: toutesfois on voit bien que ce bel ordre institué en nostre Monarchie, est corrompu, que nous ne retenons que l’ombre de ces belles premieres constitutions. Voila donc trois freins brides, qui guident l’estat du royaume de France, qui le gardent de se precipiter aux dangers, ausquels les estats, qui sont mal conduits menez, se precipitent” ( De L’Estat et Succez des Affaires de France [Paris, 1571], p. 82).
It is noteworthy here that du Haillan still uses the word constitutions in the plural and in its older medieval sense to include the several fundamental enactments of earlier kings. Thus far I have found no use of the word in its modern meaning, as the whole governmental framework of a state, before the seventeenth century. The first clear instance I have met with is Sir James Whitelocke’s jus publicum regni referred to above at page 14. Even in 1649 the Court in its accusation of Charles I refers to “the fundamental constitutions of this Kingdom,” not to the “Constitution” (Rushworth, Historical Collections, VII, p. 1396), and as late as the Revolution the pamphleteer quoted above at page 8 speaks of “the present Laws and Constitutions of England.” The twelfth century Constitutio Domus Regis ( Red Book of the Exchequer [Rolls Series], p. 807; Black Book of the Exchequer, ed. Thomas Hearne [London, 1774], I, p. 341) might be considered an exception, but to me that document as a whole looks more like an administrative order than a “constitution” in our modern sense of the term. The two extracts quoted by Du Cange in which the word is said to be equivalent to consuetudo also seem to me to refer to administrative provisions rather than promulgations of custom ( Glossarium Mediae et Infimae Latinitatis, s.v. “constitutio”). They appear to be very like the lex regia of the Leges Henrici Primi (Liebermann, Gesetze der Angelsachsen, I, p. 556), or aliquid de communi consilio. . . constitutum in the Exchequer ( Dialogus de Scaccario, I, p. i), or the “ novella constitutio, ” “ hoc est a domino rege nostro, ” by virtue of which Thomas Brown, the king’s almoner, sat in the Exchequer in the reign of Henry II, the predecessor of the later king’s remembrancers or Rememoratores Regis ( Dialogus de Scaccario, I, V, C). Apparently the word “constitution,” although well-known in this earlier period, has a different meaning and cannot be normally interpreted in the sense of Cicero’s “Constitution” or of our present one. In England the appearance of our modern conception of the “constitution” was delayed by the lawyers’ habit of defining all public relations in terms of private law. As Professor Plucknett says, “When government has ceased to be regarded as private property . . . only then can we begin to speak of political thought and a constitution in the modern non-feudal sense” ( The Lancastrian Constitution, Tudor Studies, p. 181).
Outlines of Historical Jurisprudence, vol. II, The Jurisprudence of the Greek City, p. 12.
Ibid., p. 19.
Ibid., pp. 41–42.
Ibid., p. 136.
The Politics of Aristotle, I, pp. 209–10.
Laws, VII, p. 817.
§ 138. Almost the same words are used in Areopagiticus, §14.
Politics, VI (iv), chap. xi.
Cicero, De Re Publica, III, p. 22.
Werner Jaeger, Aristotle (English translation), p. 290.
Ibid., p. 13.
Politicus, p. 297. The italics are mine.
Politics, III, p. 16.
Page 715.
Page 659.
Hermann Rehm, Geschichte der Staatsrechtswissenschaft, p. 78.
Ibid., p. 81.
Ibid., pp. 95–96.
Λέγω δὲ νόμον τὸν μὲν ἴδιον τὸν δὲ κοινόν. “I refer, on the one hand to municipal law, on the other to the jus gentium ” ( Rhetoric, I, 13, 2).
Politics, VIII, p. 1307.
The Politics of Aristotle, tr. J. E. C. Welldon, pp. 348–49.
Ibid., p. 368.
Ibid., pp. 392–93.
Ibid., p. 393.
Ibid., p. 394.
Ibid., p. 396.
A History of Medieval Political Theory in the West, I, pp. 8–9.
“. . . cum ipse imperator per legem imperium accipiat” (Gai, Institutiones, I, 2, 5).
De Legibus, III, p. 12. “It is the stoics who emancipated mankind from its subjection to despotic rule, and whose enlightened and elevated views of life bridged the chasm that separated the ancient from the Christian state, and led the way to freedom” (Lord Acton, The History of Freedom, p. 24; see also pp. 28–29).
Digest, 1, 2, 2, 9.
Only one has survived to modern times, the one enacted at the accession of the Emperor Vespasian, ad 69–70. For the text of it see P. F. Girard, Textesdedroit romain, 4th ed., pp. 107–8. The entrusting by the populus to the emperor of its authority to enact binding law is thus expressed by Ulpian in his Institutiones in the third century ad : “Quod principi placuit, legis habet vigorem; utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat” ( Dig., I, 4, 1.). In the sixth century this is paraphrased thus by the authors of the Institutes of Justinian: “Sed et quod principi placuit, legis habet vigorem, cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem concessit” ( Inst., I, 2, 6.). This substitution of concedo for confero in the sixth-century statement of the principle, and above all the deliberate change to a past tense instead of the present as used by both Gaius and Ulpian—these seem to warrant the view that no predecessor of Justinian had ever asserted this doctrine of absolutism quite as unequivocally as he.
Geschichte der Staatsrechtswissenschaft, pp. 149–50.
Édouard Cuq, Les institutions juridiques des Romains (1904), vol. I, p. xxiv.
Geist des römischen Rechts, vol. I, title 1, chap. 2, sec. 18.
Loc. cit.
Dissertations on Early Law and Custom, p. 389.
Digest, 2, 15, 14.
Digest, 1, 7, 34.
Digest, 2, 14, 7, 5.
Institutiones, III, p. 145.
Ibid., p. 146.
Digest, 1, 3, 1. In the next fragment of the same title, from the Institutions of Marcianus, an extract is given in Greek from a supposed oration of Demosthenes in which lex is defined as πόλεως συνθήκη κοινή; and some have thought that the words of Papinian are a mere paraphrase of this definition. It does not seem to me probable.
Digest, 35, 2, 1, pr.
II, p. 249.
Digest, I, 3, 31.
English Law and the Renaissance, Cambridge, 1901.
Doctor and Student, Dialogue I, chap. 5.
This was apparently the first sentence of the Institutiones of Gaius. The single surviving manuscript of Gaius is defective in the beginning and does not include these words, but in the corresponding part of the Institutes of Justinian the whole paragraph of which this is the first sentence is quoted verbatim from the extract from Gaius in the Digest (I, 1, 9). The paragraph is the first in the Gaius manuscript, and its lost first sentence may therefore be supplied without hesitation from the Digest. It is likely that Saint-German knew it, if at all—and he probably did know it—from its inclusion in the Institutes of Justinian.
F. W. Maitland, Select Passages from the Works of Bracton and Azo (Selden Society), p. xiv.
“. . . car chascuns barons est souverains en sa baronie” (Beaumanoir, Coutumes de Beauvaisis, II, 1043[p. 23]).
“La maxime princeps legibus solutus est dans l’ancien droit public francais,” in Essays in Legal History, ed. Paul Vinogradoff (Oxford, 1913), p. 201ff.
Ibid., p. 204.
For Vacarius, see C. F. C. Wenck, Magister Vacarius Primus Juris Romani in Anglia Professor (Lipsiae, 1820); F. de Zulueta, ed., The Liber Pauperum of Vacarius (Selden Society, 1927).
This distinction here so clearly made between leges and consuetudines refers, I think, to the difference between enactments and customs. The peritia juris of the next sentence refers to the law or “right” involved in particular cases, and the consuetudo regni immediately following it has reference to the feudal consilium due from tenants in chief in the Curia Regis, sanctioned by a feudal customary law common in the whole realm. The old English translation of John Beames is very misleading here. He translates the words above, in peritia juris et regni consuetudinibus, “in skill in the Law and Customs of the Realm,” reading consuetudinibus as though it were consuetudinum and thus confusing and distorting the whole meaning and constitutional significance.
Leges namque Anglicanas licet non scriptas leges appellari non videatur absurdum, cum hoc ipsum lex sit, quod principi placet legis habet vigorem, eas scilicet quas super dubiis in concilio definiendis, procerum quidem consilio et principis accedente auctoritate constat esse promulgatas.
Digest, I, 3, 32.
Chronicon Monasterii de Abingdon (Rolls Series), I, p. 297. It seems probable, from the details he gives, that the chronicler may have been an actual witness of what he records here, for the account must have been written soon after 1185; the chronicle itself ends in 1189. Although allowance must be made for the author’s natural bias, this is not likely to have affected the correctness of the most significant words in his quotation from the chief justiciar.
F. W. Maitland, Bracton’s Note Book, I, pp. 9–10. See also his introduction to Select Passages from the Works of Bracton and Azo.
Maitland, Bracton’s Note Book, I, pp. 30–33. Maitland thinks this addicio may possibly have been made by Bracton himself after the completion of the body of his treatise, but in any case Maitland is also clear that it contradicts other statements made at least five times in all parts of the book. To me it is those other statements, and not this one, that give us the true indication of the political views of Bracton himself and the majority of men in his time. I concur heartily with Dr. Kantorowicz against Maitland, in the former’s higher estimate of Bracton’s knowledge and understanding of Roman law, though possibly for reasons somewhat different from his; but I cannot agree that “no passage more genuinely Bractonian” than this one “stands in the whole treatise” (H. Kantorowicz, Bractonian Problems [Glasgow, 1941], pp. 49–52). The important and revolutionary ideas of Dr. Kantorowicz respecting the date and authorship of the Bractonian text are only remotely related to the question of Bracton’s constitutionalism, and are therefore not discussed here. On pages 71, 80, and elsewhere I have retained the date of Bracton’s Treatise preferred by Güterbock and Maitland. For criticisms of the theories of Dr. Kantorowicz, see Professor G. E. Woodbine, “Bractonian Problems,” in Yale Law Journal, LII (March, 1943), pp. 428–44; Fritz Schulz, “Critical Studies on Bracton’s Treatise,” in Law Quarterly Review, LIX (April, 1943), pp. 172–80. I have discussed the views of Dr. Kantorowicz more at length in “The Present Status of the Problem of the Bracton Text,” in Harvard Law Review, LVII (December, 1943). See also Fritz Schulz, “Bracton on Kingship,” in English Historical Review, LX (May, 1945), pp. 136–76.
Ante, p. 47, Digest, I, 3, 1; Bracton De Legibus et Consuetudinibus Angliae, folio 2 A (ed. George E. Woodbine [New Haven, 1922], II, p. 22).
“. . . et est loi commun plégen de toute commun chose” ( Li livres de jostice et de plet, ed. Rapetti, p. 4).
Folio 1.
Digest, I, 4, 1; Inst., I, 2, 6.
Folio 107.
Arthur Taylor, The Glory of Regality (London, 1820), p. 410.
This passage of Bracton was commented on with great learning by John Selden ( Ad Fletam Dissertatio, cap. iii, § ii), who, according to Hallam ( Middle Ages, chap. ix, part ii), “extenuated the effect of Bracton’s predilection for the maxims of Roman jurisprudence.” Maitland seems to agree substantially with Selden, but regards Bracton’s variation from Justinian “rather a playful perversity than a mistake” ( Bracton’s Note Book, I, p. 4, note 2). My interpretation does not vary materially from that of Selden and Maitland, except that I fail to see anything “playful” in the passage. It has been criticized by Dr. Ludwik Ehrlich ( Proceedings Against the Crown [Oxford Studies in Social and Legal History], ed. Paul Vinogradoff, VI, p. 39, note 3).
There is no doubt that Bracton’s cum is a preposition in the text as we have it. This, however, is only to say on the evidence of that text that Bracton consciously altered Justinian’s statement, whether seriously or “playfully.” It is not to say that he misunderstood it. In fact, although the cum is undoubtedly a preposition in the existing text, I am inclined to believe that this in itself is no sufficient proof that Bracton necessarily thought of the original as such. If he had been preparing this statement for a modern printer he might well have included the words cum lege regia within quotation marks. He could scarcely quote verbatim Justinian’s legalized despotism in support of his own conception of government limited in its scope by law. As Professor Schulz well says, “He [Bracton] ought to have written ‘etc.’ after ‘est,’ or,” as he adds somewhat less convincingly, “perhaps he did write it” ( English Historical Review, LX, p. 155).
Folio 54.
Folio 5. For some practical illustrations of these principles, see the excellent little book by A. B. White, Self-Government at the King’s Command (Minneapolis, Minn., 1933).
Howell’s State Trials, III, cols. 28, 49.
Folio 55 B ff.
De Regimine Principum, Book III, part 2, chap. vi.
Reliquiae Spelmannianae, p. 57, English Works (London, 1727).
Matthew Paris, Chronica Majora (Rolls Series), III, pp. 75–76.
Stubbs, Select Charters, 9th ed., p. 350.
Ibid., pp. 395–97.
Ibid., pp. 407–11.
Ibid., p. 396.
Folio 55 B. In form perhaps this is consciously reminiscent of Justinian’s phrase, quod ad singulorum utilitatem pertinet ( Institutes, I, 1, 3), as an antithesis to it.
Folio 1 B.
Chronicon Monasterii de Bello (London, 1846), pp. 65–67.
De Necessariis Observantiis Scaccarii Dialogus, ed. Hughes, Crump, and Johnson (Oxford, 1932), p. 139.
Stubbs, Select Charters, 9th ed., p. 173.
Ante, p. 69.
Ante, p. 60.
Ante, pp. 73–75.
The Case of Proclamations, 8 James I, 12 Rep., p. 75.
The Governance of England, ed. Charles Plummer (Oxford, 1885), introduction, p. 83.
Chapters in the Administrative History of Mediaeval England, V, p. 61.
“Le corps de tout le Royalme,” the words of Chief Justice Thorpe in the Bishop of Chichester’s Case (Year Book, Easter Term, 39 Edward III).
English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936). See also T. F. T. Plucknett, The Lancastrian Constitution ( Tudor Studies, ed. R. W. Seton-Watson; London, 1924), pp. 161–81; C. H. McIlwain, The Growth of Political Thought in the West (New York, 1932), pp. 354–63; and the admirable new critical edition of Fortescue’s De Laudibus Legum Angliae, ed. S. B. Chrimes (Cambridge, 1942), the first edition to be based on all the known manuscripts.
Religion and the Rise of Capitalism, p. 102.
In I, II, and III Codicis Libros Commentaria (Venice, 1615), folio 64, cited by A. Lemaire, Les lois fondamentales de la monarchie française (Paris, 1907), p. 41, note.
On the Continent, the transition from the medieval theory of dominium to the modern theory of sovereignty—the theoretical concomitant of the development of the modern nation-state—was made largely in the form of a changing interpretation of the merum et mixtum imperium et jurisdictio of the Roman law sources. The contemporary discussions of these all-important terms in the period between the thirteenth and the seventeenth century are fundamental and very numerous but they have been used amazingly little by the historians of political thought. Bracton’s discrimination between gubernaculum and jurisdictio might be called the English equivalent of these discussions; but Bracton came too early to develop his distinction fully, and his successors in England lacked the knowledge of Roman law and the interest in it which so color and control all continental treatments of the same important political problems. It has been necessary here to confine attention to the English side of this development alone. This, however, seems to show that Cowell was historically correct, and Coke wrong, when the former asserted, early in the seventeenth century, that the English common law nihil aliud esse quam Romani feudalis mistionem ( Institutiones Juris Anglicani, Authore Johanne Cowello [Oxford, 1664], “Epistola Dedicatoria”; first published in 1605). For similar views about the Roman element in English law expressed by Lord Ellesmere, see his speech in the case of the Post-Nati (Howell’s State Trials, II, 673). For the continental side, reference might be made to C. S. N. Woolf’s Bartolus of Sassoferrato (Cambridge, England, 1913), which deals with an early stage of the development; and for the later stages, to the volume by Myron P. Gilmore, Argument from Roman Law in Political Theory 1200–1600 (Harvard Historical Monographs, Cambridge, Mass., 1941). I can now include also the admirable study of William Farr Church, Constitutional Thought in Sixteenth-Century France (Harvard Historical Studies, Cambridge, Mass., 1941).
The Whole Workes of W. Tyndall, John Frith, and Doct. Barnes (London, 1573), pp. 111–18, passim. On the general subject of the early Tudor monarchy and the contemporary theories concerning it, see The Early Tudor Theory of Kingship, by Franklin Le Van Baumer (New Haven, 1940); Early Tudor Government, Henry VII, by Kenneth Pickthorn (Cambridge, 1934).
Commentary on the Book of Daniel, Works, V, p. 91.
De Justa Henrici Tertii Abdicatione e Francorum Regno Libri Quatuor, Parisiis, 1589.
“. . . Iesuits are nothing but Puritan-papists” ( A Premonition, Political Works of James I, p. 126).
Cited by A. Lemaire, Les lois fondamentales de la monarchie française, p. 58.
“Et neantmoins demeure tousiours la dignité auctorité royalle en son entier, non pas totalement absolue, ne aussy restraincte par trop, mais reglée refrenée par bonnes loix, ordonnances coustumes, lesquelles sont establies de telle sorte qu’a peine se peuuent rompre adnichiler, iaçoit qu’en quelque temps en quelque endroit, il y aduienne quelque infraction violence. Et pour parler desdictz freins par lesquelz la puissance absoluë des Roys de France est reglée, i’eu treuue trois principaulx, Le premier est la religion, Le second la iustice, Et le tiers la police.” Chap. viii, folios 9–10. “Le second frein est la iustice, laquelle sans point de difficulté est plus auctorisée en France qu’en nul autre païs du monde que lon sçache, mesmement à cause des parlements qui ont esté instituez principalement pour ceste cause, à ceste fin de refrener la puissance absoluë dont vouldroient vser les Roys” (Claude de Seyssell, La grand’ monarchie de France [Paris, 1558], chap. x, folio 11; first edition, 1519).
De l’estat et succez des affaires de France (Paris, 1571), p. 82.
The Letters of Stephen Gardiner, ed. James Arthur Muller (New York, 1933), p. 370.
Ibid., p. 377.
Ibid., p. 379ff.
Quoted by Thomas McCrie, Life of John Knox, note BB.
Eight Centuries of Reports, by Judge Jenkins (1734), Fourth Century, Case XCIII.
Ibid., Sixth Century, Case XXXV, 23 Elizabeth.
Ibid., Seventh Century, Case LXXXIII, 2 James I.
Ibid., Fourth Century, Case XXXVI, 1 Henry VII.
Ibid., Fifth Century, Case XXVII, 34 Henry VIII.
Anderson’s Reports, I, p. 152, translated in Thayer’s Cases on Constitutional Law, I, pp. 12–15.
A Compleat Journal of the Votes, Speeches and Debates, both of the House of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, of Glorious Memory, collected by . . . Sir Simonds D’Ewes, Baronet (London, 1693), p. 633. For the unfavorable estimate of the character of Serjeant Heyl, Hele, or Heale, by Lord Ellesmere, himself no enemy of the royal prerogative, see Lord Campbell’s Lives of the Lord Chancellors and Keepers of the Great Seal of England (2d ed.; London, 1846), II, pp. 207–10. In a case before the Star Chamber in 1604, Lord Ellesmere voted to “find him [Hele] guilty in all of corruption and ambition, craft and covetous practices,” and apparently he was fined 1,000 pounds ( Les Reportes del Cases in Camera Stellata, ed. W. P. Baildon [1894], pp. 171–76, 411). See also The Egerton Papers (Camden Society, 1840), pp. 315, 391, 399; Lives of Eminent Serjeants-at-Law, by Humphry William Woolrych (London, 1869), I, pp. 172–85.
Ibid., p. 640.
England in the Reign of King Henry the Eighth (Early English Text Society), pp. 100–101.
For a convenient though abridged text of the Statute of Proclamations, see Tudor Constitutional Documents, ed. J. R. Tanner, p. 532; for the circumstances of the passing of the act, Tanner’s introductory note (pp. 529–32), and the article by E. R. Adair, in English Historical Review, XXXII, pp. 34–46.
A History of England from the Defeat of the Armada to the Death of Elizabeth, II, p. 275.
Introduction to Political Science, p. 256.
Ibid., pp. 253–54. While this is true for most of the time as a matter of form after the enactment of the Triennial Act in 1664, and a parliament was usually in being, parliament’s effectiveness was not secured till means were found to ensure a session as well as an election, and such means were not found till the Revolution. The unprecedented number of prorogations and dictated adjournments in the reigns of Charles II and James II were as effective as a dissolution in checking any parliamentary opposition to the Crown. In 1677 Buckingham and Shaftesbury argued that such prorogations if they lasted more than one year were equivalent to a dissolution under the provisions of two unrepealed statutes of Edward III. For this Shaftesbury was put in prison at the pleasure of the Lords and the King, where he remained for more than a year and was then released only on a full renunciation of his error. The Tudor monarchs had met the growing opposition of parliament by subjugating their parliaments, a method progressively less and less effective. The Stuart method came to be one by suppression rather than subjugation when subjugation failed, and Charles I succeeded in this policy till the Scottish war forced his hand. After the Restoration Charles II was not faced with the problem until the later sessions of the long Cavalier Parliament and its successors. He then followed his father’s method, but by prorogation instead of flat violation of the Triennial Act of 1664. Before his death, however, he was forced to violate his own statute. James II, in the single parliament called by him, returned to his brother’s earlier method of suppression through prorogation.
Parliamentary History, I, p. 555.
In the old English translation of the Latin original (Pierre Janelle, Obedience in Church and State [Cambridge, 1930], p. 93).
D’Ewes, Journal, p. 12.
Ibid., p. 151.
Ibid., p. 141.
Ibid., p. 168.
Ibid., p. 175.
Ibid., p. 185.
Ibid., p. 244.
Ibid., pp. 284–85.
Ibid., p. 460. The italics are mine. These matters are referred to later in the same parliament as “matters of State, or Causes Ecclesiastical” (ibid., p. 479).
Ibid., p. 470.
The phrase of Sir Humphrey Gilbert on 1571 (ibid., p. 168).
The Prerogative of Parliaments (1644), Harleian Miscellany (ed. of 1745), V, p. 208.
1 Jac. I, cap. 1; Statutes of the Realm, IV, p. 1017.
The king’s speech in parliament in 1607 ( The Political Works of James I [Cambridge, Mass., 1918], p. 300).
De Republica Anglorum, ed. L. Alston (Cambridge, 1906), book II, chap. ii, p. 58.
The Trew Law of Free Monarchies, in The Political Works of James I, p. 62.
Speech of 1605 (ibid., p. 288).
Parliamentary History, I, pp. 1326–27.
Ibid., I, 1344.
Ibid., I, 1351. For a penetrating analysis of the constitutional struggle in England between 1603 and 1649, see The Royal Prerogative, 1603–1649 by Francis D. Wormuth (Ithaca, N.Y., 1939).
Commons Debates, 1621, ed. Notestein, Relf, and Simpson (New Haven, 1935), V, p. 239.
Ibid., p. 240.
Willion v. Berkley, Plowden’s Commentaries, pp. 236–37.
Commons Debates, 1621, II, p. 490.
Ante, p. 42 et seq.
Ante, p. 63.
Ante, p. 64.
Palgrave, Parliamentary Writs I (Anno XXIII Regis Edwardi, p. 30).
Rot. Parl., II, p. 290 A. Que le dit Roi Johan ne nul autre purra mettre lui ne son Roialme ne son Poeple en tiele subjection, saunz Assent accorde de eux.
Rex v. the Bishop of Chichester, Year Book Pasch. 39 Edward III, p. 7.
Year Book Pasch. 19 Henry VI, no. 1; Plucknett, The Lancastrian Constitution, Tudor Studies, ed. R. W. Seton-Watson, p. 163.
Wimbish v. Tailbois, 4 Edward VI, Plowden’s Reports, p. 59. For reference to this interesting case I am indebted to the unpublished thesis of Edward T. Lampson, The Royal Prerogative, 1485–1603, in the Harvard University Library. Lampson has now published an interesting analysis and discussion of this important case: “Some New Light on the Growth of Parliamentary Sovereignty: Wimbish versus Taillebois,” American Political Science Review, XXXV (October, 1941), pp. 952–60. For some discussion of the earlier English cases dealing with this matter, see Brinton Coxe, An Essay on Judicial Power and Unconstitutional Legislation (Philadelphia, 1893), pp. 147–64; A Discourse upon the Exposicion and Understandinge of Statutes, by Samuel E. Thorne (San Marino, California, 1942). On the general subject of the expropriation of private property, see also my Growth of Political Thought in the West, p. 181, note 2, and p. 190, note 1, with the references there cited, especially the valuable paper by E. Meynial, “Notes sur la formation de la théorie du domaine divisé,” in Mélanges Fitting (Montpellier, 1908), II, pp. 409–61. The political principles vaguely touched on in Wimbish v. Taillebois became the basis of the long struggle between ruler sovereignty and popular sovereignty and of the antithesis between the constitutional limits possible under the former and the illimitable power of the people. The persistence of this fundamental conflict is well illustrated by the antagonistic views of Thomas Jefferson on the one side and those of Chief Justice Marshall and Mr. Justice Story on the other. See “The Story-Marshall Correspondence (1819–1831)” by Charles Warren, William and Mary College Quarterly, 2d ser., XXI, no. 1 (January, 1941). Thus Jefferson wrote in 1820: “When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.” In a letter from Story to Marshall of June 27,1821, the former writes: “Mr. Jefferson . . . in the most direct terms denies the right of the Judges to decide constitutional questions. . . and endeavours to establish that the people are the only proper Judges of violations of constitutional authority and by changes in the course of election are alone competent to apply the proper remedy. If, he says, it is objected they are not sufficiently enlightened to exercise this duty with discretion, the remedy is to enlighten them the more. . . . There never was a period of my life when these opinions would not have shocked me, but at his age, and in these critical times, they fill me alternately with indignation and melancholy. Can he wish yet to have influence enough to destroy the government of his Country?”
See Appendix, post, p. 137ff.
De Republica Anglorum, ed. Alston, p. 105.
Ibid., p. 106.
Ibid., p. 104.
The Third Part of the Institutes of the Laws of England (1644), p. 35.
The evidence is collected in David Jardine’s valuable Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth (1837), and many instances are given in A History of Crime in England, by Luke Owen Pike, 2 vols., London, 1873, 1876. See also Sir William Holdsworth, A History of English Law, Vol. V (1924), pp. 184–88. The most recent work on this subject is The History of Torture in England by L. A. Parry, but it adds little to our knowledge of the subject and nothing to our understanding of its constitutional implications.
Jardine, A Reading on the Use of Torture, p. 16.
Howell’s State Trials, II, 871.
Jardine, p. 24.
Ibid., Appendix 15.
Holdsworth, History of English Law, V, p. 185.
II State Trials, 774, note.
Jardine, p. 59.
History of England, Vol. VI, p. 359, n. 2. See also Holdsworth, History of English Law, V, p. 186.
John Selden, Table Talk., s. v. Tryalls.
For discussions of the oath Ex Officio and its constitutional importance, see R. G. Usher, The Reconstruction of the English Church (1910); The Rise and Fall of the High Commission (1913); Mary Hume Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, in Essays in History and Political Theory in Honor of Charles Howard McIlwain (1936), pp. 199–229; [Richard Cosin], An Apologie for Sundrie Proceedings by Iurisdiction Ecclesiasticall (1593); [James Morice], A briefe treatise of Oathes exacted by Ordinaries and Ecclesiasticall Iudges, to answere generallie to all such Articles or Interrogatories, as pleaseth them to propound. And of their forced and constrained Oathes ex officio, wherein is proved that the same is unlawful; The Argument of Master Nicholas Fuller, in the case of Thomas Lad, and Richard Maunsell, his Clients, Wherein it is plainely proved, that the Ecclesiasticall Commissioners have no power, by vertue of their Commission to Imprison, to put to the Oath Ex Officio, or to fine any of his Maiesties Subjects, Imprinted 1607. The book of Cosin is an elaborate defense of the procedure of the Commissioners, approximately one-third of which is devoted to the Ex Officio oath and to the attack on it in Morice’s book and in one other anonymous writing of the time. Mrs. Maguire refers also to A Collection shewinge what iurisdiction the Clergie hath heretofore lawfully used and may lawfully use in ye Realme of England (Calthorpe MSS., Vol. 44, folios 99–202), another attack on the methods of the commissioners, by Robert Beale, which I have not seen.
For the illustration of the dispensing power, see Paul Birdsall, “Non Obstante”—A Study of the Dispensing Power of English Kings, in Essays in History and Political Theory in Honor of Charles Howard McIlwain, pp. 37–76.
D’Ewes, Journal, p. 547.
Acts of the Privy Council, New Series, Vol. 32, p. 237; State Papers Domestic, Elizabeth, Vol. 82, no. 8.
The Case of Monopolies, XI Coke’s Reports, 84. The case is reported also in the Reports of Noy and Moore. See Cheyney, History of England, II, pp. 306–8; W. H. Price, The English Patents of Monopoly (Harvard Economic Studies), pp. 22–24; Select Charters of Trading Companies (Selden Society), ed. Cecil T. Carr, Introduction, p. lxvi; J. W. Gordon, Monopolies by Patents (1897), especially app. II (pp. 193–232); Sir William Holdsworth, A History of English Law, IV (1924), pp. 343–54; D. Seaborne Davies, “Further Light on the Case of Monopolies,” Law Quarterly Review, no. 48 (July, 1932), pp. 394–414.
Townshend’s Historical Collections (1680), p. 239.
Ibid., p. 249.
Proclamation of November 28, 1601. Price, The English Patents of Monopoly, app. J (pp. 156–59). The historians of the constitution have dwelt upon Elizabeth’s suppression of actual monopolies, which she did by her mere prerogative. It is far more significant that subjects injured by the monopolies allowed to remain were here declared to have “their liberty to take their ordinary remedy by her Highness’s laws of this realm.” Similar provisions occur in the subsequent proclamations of James I and in the Statute of 1624. But Charles I characteristically preferred to act in such matters “of his mere grace and favor” and “by his regal power” wherever he was able to do so. It may be said without exaggeration that this fundamental power claimed as of right by the king, to stay any action involving the royal prerogative in the lower courts of common law or any debate touching it in “The High Court of Parliament,” is in practice the real crux of the whole constitutional struggle of the sixteenth century in England. The “Prerogative Royall may not be called in question”; yet, since the time of Henry VIII, by the common lawyers, it had been “made a great matter, the stay of the Common Lawe,” as Stephen Gardiner wrote to the Protector Somerset in 1547. See also Original Letters Illustrative of English History, ed. Henry Ellis, 3d ser., IV, pp. 87–90 (London, 1846), a letter to the Lord Chancellor and Lord Treasurer written apparently in 1591 and signed by eleven judges of the common-law courts, the whole of the three benches except Baron Sotherton, complaining, among other things, that “divers have been imprisoned for sueinge ordinarie accōns and sutes att the common lawe untill they will leave the same, or againste theire matter to order, althoughe sometime yt be after judgmente and execucōn.”
Report of Barbaro in Calendar of State Papers Venetian, V, p. 341.
Howell’s State Trials, II, 389. This distinction between the two kinds of power exercised by the king was indicated clearly by Alberico Gentile: “Atque absoluta potestas est plenitudo potestatis. Est arbitrio plenitudo, nulli vel necessitati, vel iuris publici regulis subiecta, quod ex Baldo acceptum dicunt alii. est potestas extraordinaria, et libera. est illa, quam in Anglia significamus nomine regiae Praerogativae. Atque sic interpretes iuris communiter scribunt, esse in principe potestatem duplicem, ordinariam adstrictam legibus, et absolutam definiunt, secundum quam potest ille tollere ius alienum, etiam magnum, etiam sine caussa” (Alberici Gentilis J. C. Professoris Regii, Regales Disputationes Tres: id est, De potestate Regis absoluta, Londini, 1605, pp. 10–11). The late Sir William Holdsworth considered such a characterization of the English king as “an absolute ruler” a proof of Bodin’s inaccuracy ( A History of English Law, vol. IV, p. 194). If this is an inaccuracy, however, it is one that Bodin shared with most of the jurists and practically all of the statesmen in England in his time. Thus, for example, Richard Bancroft speaks of “the freest and most absolute monarchies” ( Daungerous Positions and Proceedings, 1593, book I, chap. 6); Sir Walter Raleigh, in the preface to his History of the World, says that Philip II “attempted to make himself not only an absolute monarch, like unto the Kings of England and France, but Turk like, to tread under his feet all their natural and fundamental laws, privileges, and ancient rights”; and even Sir Edward Coke proved to his own entire satisfaction “that the Kingdom of England is an absolute monarchy, and that the King is the only supreme governor as well over ecclesiastical persons, and in ecclesiastical causes, as temporal within this realm” ( 5th Reports, xii). Likewise, in his instructions to the grand jury for the trial of the regicides in 1660, Sir Orlando Bridgeman, Chief Baron of the Exchequer, asserted that “this is an absolute monarchy.” But, he added, “It is one thing to have an absolute monarchy, another thing to have that government absolutely without laws” ( State Trials, V, 991–92). Other instances are not infrequent in the interval. As Locke said, “Even absolute power, when it is necessary, is not arbitrary by being absolute” ( Two Treatises of Government, book II, chap. xi). Bodin’s use of the word “absolute” in referring to the English monarchy seems to be fully warranted by contemporary usage in England itself, but his interpretation of this, derived as he says from the Civilian, Dr. Valentine Dale, then English ambassador to France, is, I admit, rather extreme for that time on the side of the prerogative ( Les six livres de la République, Paris, 1577, p. 102). For Bodin, however, “absolute” does not imply the entire absence of legal limitations, and his theory, though exceptional, is not unique; for Dale was not the only English Civilian who held the same. In fact, a few English royalists of the time—and not all of them Civilians—went considerably beyond Bodin, in holding that the king had authority to take subsidies without consent. After 1642 there were more of these in England, after 1649 probably many more.
“There is a Prerogative disputable and a Prerogative indisputable, as to make warre and Peace; the other concerns meum et tuum and are bounded by Lawe” (Pym’s Diary, Commons Debates, 1621, ed. Notestein, Relf, and Simpson, IV, p. 79).
Howell’s State Trials, III, 1083.
Speech in the Star Chamber, 1616, The Political Works of James I, p. 333.
A Dialogue of the Common Law, The English Works of Thomas Hobbes, ed. Molesworth, VI, p. 12.
State Trials, II, 371.
Ibid., p. 559.
Ibid., III, 1. The speeches of Digges, Littleton, Selden, and Coke concerning this case, delivered before a committee of the Lords and Commons in 1628, were published in London in 1642.
State Trials, III, 825.
Ibid., II, 396.
Ibid., III, 36–37.
Ibid., p. 45.
Ibid., p. 46.
State Trials, III, 174.
Ibid., p. 62.
Ibid., p. 173.
Ibid., p. 185.
Ibid., p. 193.
Ibid., p. 79.
Ibid., p. 194.
Ibid., pp. 193–94.
Ibid., p. 66.
As put by Selden ( State Trials, III, 170).
Ibid., p. 57.
Ibid., p. 78.
For the violent language of Edward Hyde, afterwards earl of Clarendon, against these judges, used in the first session of the Long Parliament in 1640, see ibid., p. 1282.
A History of the Custom-Revenue in England (1892), I, p. 17.
Even so late and so extreme an upholder of royal authority, divine right, and passive obedience as Sir George MacKenzie acknowledged that private property was ordinarily outside the scope of the king’s lawful authority: “For it is fit to know, that Government is the Kings, and Property is the Subjects Birth-right. Monarchy is a Government, and so can include no more than what is necessary for Government. And though the Turk or Mogol, arrogate to themselves, the total property of their Subjects, in this they are Tyrants, and not Kings. And when our Statute above-mentioned, says, That our Kings have as much power as they, this is only to be understood of what Right they have by the Nature of Monarchy, Rex nomen est jurisdictionis non dominii, say the Lawyers” ( Jus Regium [London, 1684], pp. 50–51). He holds that “our Parliaments are not co-ordinate with our Kings, in the Legislative Power; but that the Legislative and Architectonick Power of making Laws (as lawyers term it) does solely reside in the King, the Estates of Parliament only consenting” (p. 67). And yet he has to admit that “what is once ours, cannot be taken away without consent” (p. 51). This is in practice almost precisely the position of Bodin and of other great French jurists of his time. By the seventeenth century, however, most of them had come to agree with the more absolutistic view of Le Bret when he recognized a right in the French Kings, undeniable even if only prescriptive, “d’user absolument de leur authorité, et de leuer sur leurs peuples des Tailles et des subsides; mesmes sans leur consentment” ( De la souveraineté du Roy, par messire Car. Le Bret, Conseiller ordinaire de sa majesté en ses Conseils d’Estat Prive [Paris, 1632], p. 396). Nothing could better illustrate the growing fundamental difference between the modern development of constitutional principles in France and in England; the great practical importance of “the power of the purse” in accounting for that difference; or the significance of the persistence in England of the definition of the rights to private property in a Common law determinable by judges or the High Court of Parliament only, and not by the King apart from the estates, which made “the power of the purse” ultimately an effective means of securing and maintaining constitutional limitations upon the exercise of arbitrary government in any fields whatsoever. The power to tax involves the power to destroy, and often to destroy—or to control—much more than the thing directly taxed.
The Constitutional History of England (New York, 1897), I, p. 314.
Ibid., I, p. 378.
Andrew Amos, The English Constitution in the Reign of King Charles the Second (1857), p. 11.
Printed for the first time in 1924. See Holdsworth, History of English Law, V, app. III.
Hargrave MSS, no. 94, f. 14 (British Museum).
Op. cit. In his Reflections on Hobbes’s Dialogue, Hale deals with the potestas irritans more briefly but to the same effect: “3 Potestas Irritans, and thus the Laws also in many cases bindes ye Kinges Acts, and make them void if they are agt Lawe” (Holdsworth, History of English Law, V, III, p. 508).
State Trials, III, 1017.
Sir Robert Berkley in the Ship-Money Case (ibid., III, 1099).
State Trials, III, 1083.
Holdsworth, A History of English Law, V, p. 508.
Coke’s Reports, XI, p. 84.
State Trials, III, 1125.
21 22 Jac. I, cap. 3.
Certayne Considerations upon the Government of England (Camden Society), p. 10.