Constitutional History of England, Henry VII to George II. Volume 2 of 3 — John Shaqi
Constitutional History of England, Henry VII to George II. Volume 2 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 2 of 3
Hallam, Henry
Constitutional history -- Great Britain
even the insolence of rival neighbours, be reckoned among those
instant perils, for which a parliament would provide too late?
To the precedents alleged on the other side, it was replied, that no
one of them met the case of an inland county; that such as were before
the 25 E. I. were sufficiently repelled by that statute, such as
occurred under Edward III. by the later statutes, and by the
remonstrances of parliament during his reign; and there were but very
few afterwards. But that, in a matter of statute law, they ought not
to be governed by precedents, even if such could be adduced. Before
the latter end of Edward I.'s reign, St. John observes, "all things
concerning the king's prerogative and the subject's liberties were
upon uncertainties." "The government," says Holborne truly, "was more
of force than law." And this is unquestionably applicable, in a lesser
degree, to many later ages.
Lastly, the petition of right, that noble legacy of a slandered
parliament, reciting and confirming the ancient statutes, had
established that no man thereafter be compelled to make or yield any
gift, loan, benevolence, tax, or such-like charge, without common
consent by act of parliament. This latest and most complete
recognition must sweep away all contrary precedent, and could not,
without a glaring violation of its obvious meaning, be stretched into
an admission of ship-money.
The king's counsel, in answer to these arguments, appealed to that
series of records which the diligence of Noy had collected. By far the
greater part of these were commissions of array. But several, even of
those addressed to inland towns (and, if there were no service by
tenure in the case, it does not seem easy to distinguish these in
principle from counties), bore a very strong analogy to the present.
They were, however, in early times. No sufficient answer could be
offered to the statutes that had prohibited unparliamentary taxation.
The attempts made to elude their force were utterly ineffectual, as
those who are acquainted with their emphatic language may well
conceive. But the council of Charles the First, and the hirelings who
ate their bread, disdained to rest their claim of ship-money (big as
it was with other and still more novel schemes) on obscure records, or
on cavils about the meaning of statutes. They resorted rather to the
favourite topic of the times, the intrinsic, absolute authority of the
king. This the attorney-general Banks placed in the very front of his
argument. "This power," says he, "is innate in the person of an
absolute king, and in the persons of the kings of England. All
magistracy it is of nature, and obedience and subjection it is of
nature. This power is not any ways derived from the people, but
reserved unto the king when positive laws first began. For the king of
England, he is an absolute monarch; nothing can be given to an
absolute prince but what is inherent in his person. He can do no
wrong.
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