The History of England, from the Accession of James the Second - Volume 1, Thomas Babington Macaulay [ebook pc reader txt] 📗

Tory will deny that these principles had, five hundred

years ago, acquired the authority of fundamental rules. On the

other hand, no candid Whig will affirm that they were, till a

later period, cleared from all ambiguity, or followed out to all

their consequences. A constitution of the middle ages was not,

like a constitution of the eighteenth or nineteenth century,

created entire by a single act, and fully set forth in a single

document. It is only in a refined and speculative age that a

polity is constructed on system. In rude societies the progress

of government resembles the progress of language and of

versification. Rude societies have language, and often copious

and energetic language: but they have no scientific grammar, no

definitions of nouns and verbs, no names for declensions, moods,

tenses, and voices. Rude societies have versification, and often

versification of great power and sweetness: but they have no

metrical canons; and the minstrel whose numbers, regulated solely

by his ear, are the delight of his audience, would himself be

unable to say of how many dactyls and trochees each of his lines

consists. As eloquence exists before syntax, and song before

prosody, so government may exist in a high degree of excellence

long before the limits of legislative, executive, and judicial

power have been traced with precision.


It was thus in our country. The line which bounded the royal

prerogative, though in general sufficiently clear, had not

everywhere been drawn with accuracy and distinctness. There was,

therefore, near the border some debatable ground on which

incursions and reprisals continued to take place, till, after

ages of strife, plain and durable landmarks were at length set

up. It may be instructive to note in what way, and to what

extent, our ancient sovereigns were in the habit of violating the

three great principles by which the liberties of the nation were

protected.


No English King has ever laid claim to the general legislative

power. The most violent and imperious Plantagenet never fancied

himself competent to enact, without the consent of his great

council, that a jury should consist of ten persons instead of

twelve, that a widow's dower should be a fourth part instead of a

third, that perjury should be a felony, or that the custom of

gavelkind should be introduced into Yorkshire.2 But the King had

the power of pardoning offenders; and there is one point at which

the power of pardoning and the power of legislating seem to fade

into each other, and may easily, at least in a simple age, be

confounded. A penal statute is virtually annulled if the

penalties which it imposes are regularly remitted as often as

they are incurred. The sovereign was undoubtedly competent to

remit penalties without limit. He was therefore competent to

annul virtually a penal statute. It might seem that there could

be no serious objection to his doing formally what he might do

virtually. Thus, with the help of subtle and courtly lawyers,

grew up, on the doubtful frontier which separates executive from

legislative functions, that great anomaly known as the dispensing

power.


That the King could not impose taxes without the consent of

Parliament is admitted to have been, from time immemorial, a

fundamental law of England. It was among the articles which John

was compelled by the Barons to sign. Edward the First ventured to

break through the rule: but, able, powerful, and popular as he

was, he encountered an opposition to which he found it expedient

to yield. He covenanted accordingly in express terms, for himself

and his heirs, that they would never again levy any aid without

the assent and goodwill of the Estates of the realm. His powerful

and victorious grandson attempted to violate this solemn compact:

but the attempt was strenuously withstood. At length the

Plantagenets gave up the point in despair: but, though they

ceased to infringe the law openly, they occasionally contrived,

by evading it, to procure an extraordinary supply for a temporary

purpose. They were interdicted from taxing; but they claimed the

right of begging and borrowing. They therefore sometimes begged

in a tone not easily to be distinguished from that of command,

and sometimes borrowed with small thought of repaying. But the

fact that they thought it necessary to disguise their exactions

under the names of benevolences and loans sufficiently proves

that the authority of the great constitutional rule was

universally recognised.


The principle that the King of England was bound to conduct the

administration according to law, and that, if he did anything

against law, his advisers and agents were answerable, was

established at a very early period, as the severe judgments

pronounced and executed on many royal favourites sufficiently

prove. It is, however, certain that the rights of individuals

were often violated by the Plantagenets, and that the injured

parties were often unable to obtain redress. According to law no

Englishman could be arrested or detained in confinement merely by

the mandate of the sovereign. In fact, persons obnoxious to the

government were frequently imprisoned without any other authority

than a royal order. According to law, torture, the disgrace of

the Roman jurisprudence, could not, in any circumstances, be

inflicted on an English subject. Nevertheless, during the

troubles of the fifteenth century, a rack was introduced into the

Tower, and was occasionally used under the plea of political

necessity. But it would be a great error to infer from such

irregularities that the English monarchs were, either in theory

or in practice, absolute. We live in a highly civilised society,

through which intelligence is so rapidly diffused by means of the

press and of the post office that any gross act of oppression

committed in any part of our island is, in a few hours, discussed

by millions. If the sovereign were now to immure a subject in

defiance of the writ of Habeas Corpus, or to put a conspirator to

the torture, the whole nation would be instantly electrified by

the news. In the middle ages the state of society was widely

different. Rarely and with great difficulty did the wrongs of

individuals come to the knowledge of the public. A man might be

illegally confined during many months in the castle of Carlisle

or Norwich; and no whisper of the transaction might reach London.

It is highly probable that the rack had been many years in use

before the great majority of the nation had the least suspicion

that it was ever employed. Nor were our ancestors by any means so

much alive as we are to the importance of maintaining great

general rules. We have been taught by long experience that we

cannot without danger suffer any breach of the constitution to

pass unnoticed. It is therefore now universally held that a

government which unnecessarily exceeds its powers ought to be

visited with severe parliamentary censure, and that a government

which, under the pressure of a great exigency, and with pure

intentions, has exceeded its powers, ought without delay to apply

to Parliament for an act of indemnity. But such were not the

feelings of the Englishmen of the fourteenth and fifteenth

centuries. They were little disposed to contend for a principle

merely as a principle, or to cry out against an irregularity

which was not also felt to be a grievance. As long as the general

spirit of the administration was mild and popular, they were

willing to allow some latitude to their sovereign. If, for ends

generally acknowledged to be good, he exerted a vigour beyond the

law, they not only forgave, but applauded him, and while they

enjoyed security and prosperity under his rule, were but too

ready to believe that whoever had incurred his displeasure had

deserved it. But to this indulgence there was a limit; nor was

that King wise who presumed far on the forbearance of the English

people. They might sometimes allow him to overstep the

constitutional line: but they also claimed the privilege of

overstepping that line themselves, whenever his encroachments

were so serious as to excite alarm. If, not content with

occasionally oppressing individuals, he cared to oppress great

masses, his subjects promptly appealed to the laws, and, that

appeal failing, appealed as promptly to the God of battles.


Our forefathers might indeed safely tolerate a king in a few

excesses; for they had in reserve a check which soon brought the

fiercest and proudest king to reason, the check of physical

force. It is difficult for an Englishman of the nineteenth

century to imagine to himself the facility and rapidity with

which, four hundred years ago, this check was applied. The people

have long unlearned the use of arms. The art of war has been

carried to a perfection unknown to former ages; and the knowledge

of that art is confined to a particular class. A hundred thousand

soldiers, well disciplined and commanded, will keep down ten

millions of ploughmen and artisans. A few regiments of household

troops are sufficient to overawe all the discontented spirits of

a large capital. In the meantime the effect of the constant

progress of wealth has been to make insurrection far more

terrible to thinking men than maladministration. Immense sums

have been expended on works which, if a rebellion broke out,

might perish in a few hours. The mass of movable wealth collected

in the shops and warehouses of London alone exceeds five

hundredfold that which the whole island contained in the days of

the Plantagenets; and, if the government were subverted by

physical force, all this movable wealth would be exposed to

imminent risk of spoliation and destruction. Still greater would

be the risk to public credit, on which thousands of families

directly depend for subsistence, and with which the credit of the

whole commercial world is inseparably connected. It is no

exaggeration to say that a civil war of a week on English ground

would now produce disasters which would be felt from the Hoang-ho

to the Missouri, and of which the traces would be discernible at

the distance of a century. In such a state of society resistance

must be regarded as a cure more desperate than almost any malady

which can afflict the state. In the middle ages, on the contrary,

resistance was an ordinary remedy for political distempers, a

remedy which was always at hand, and which, though doubtless

sharp at the moment, produced no deep or lasting ill effects. If

a popular chief raised his standard in a popular cause, an

irregular army could be assembled in a day. Regular army there

was none. Every man had a slight tincture of soldiership, and

scarcely any man more than a slight tincture. The national wealth

consisted chiefly in flocks and herds, in the harvest of the

year, and in the simple buildings inhabited by the people. All

the furniture, the stock of shops, the machinery which could