belonging, accordingto the statutes in parliament agreed on, and
the laws and customs of the same." [6]
The passage and enforcement of this statute, and the assumption
of this oath by the king, were plain violations of the English
constitution, inasmuch as they abolished, so far as such an oath
could abolish, the legislative power of the king, and also "those
just laws and customs which the common people (through their
juries) had chosen," and substituted the will of parliament in
their stead.
Coke was a great advocate for the legislative power of
parliament, as a means of restraining the power of the king. As
he denied all power to juries to decide upon the obligation of
laws, and as he held that the legislative power was "so
transcendent and absolute as (that) it cannot be confined, either
for causes or persons, within any bounds," [7] he was perhaps
honest in holding that it was safer to trust this terrific power
in the hands of parliament, than in the hands of the king. His
error consisted in holding that either the king or parliament had
any such power, or that they had any power at all to pass laws
that should be binding upon a jury.
These declarations of Coke, that the charter was confirmed by
thirty-two "acts of parliament," have a mischievous bearing in
another respect. They tend to weaken the authority of the
charter, by conveying the impression that the charter itself
might be abolished by "act of parliament." Coke himself admits
that it could not be revoked or rescinded by the king; for he
says, "All pretence of prerogative against Magna Carta is taken
away." (2 Inst., 36.)
He knew perfectly well, and the whole English nation knew, that
the king could not lawfully infringe Magna Carta. Magna Carta,
therefore, made it impossible that absolute power could ever be
practically established in England, in the hands of the king.
Hence, as Coke was an advocate for absolute power, that is, for
a legislative power "so transcendent and absolute as (that) it
cannot, be confined, either for causes or persons, within any
bounds," there was no alternative for him but to vest this
absolute power in parliament. Had he not vested it in parliament,
he would have been obliged to abjure it altogether, and to
confess that the people, through their juries, had the right to
judge of the obligation of all legislation whatsoever; in other
words, that they had the right to confine the government within
the limits of "those just laws and customs which the common
people (acting as jurors) had chosen." True to his instincts, as
a judge, and as a tyrant, he assumed that this absolute power was
vested in the hands of parliament.
But the truth was that, as by the English constitution parliament
had no authority at all for general legislation, it could no more
confirm, than it could abolish, Magna Carta.
Public-domain text, read in full here on John Shaqi.
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