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
He is the sole judge, and we ought not to question him. Where
the law trusts, we ought not to distrust. The acts of parliament," he
observed, "contained no express words to take away so high a
prerogative; and the king's prerogative, even in lesser matters, is
always saved, wherever express words do not restrain it."
But this last argument appearing too modest for some of the judges who
pronounced sentence in this cause, they denied the power of parliament
to limit the high prerogatives of the Crown. "This imposition without
parliament," says Justice Crawley, "appertains to the king originally,
and to the successor _ipso facto_, if he be a sovereign in right of
his sovereignty from the Crown. You cannot have a king without these
royal rights, no, not by act of parliament." "Where Mr. Holborne,"
says Justice Berkley, "supposed a fundamental policy in the creation
of the frame of this kingdom, that in case the monarch of England
should be inclined to exact from his subjects at his pleasure, he
should be restrained, for that he could have nothing from them, but
upon a common consent in parliament; he is utterly mistaken herein.
The law knows no such king-yoking policy. The law is itself an old and
trusty servant of the king's; it is his instrument or means which he
useth to govern his people by: I never read nor heard that _lex_ was
_rex_; but it is common and most true, that _rex_ is _lex_." Vernon,
another judge, gave his opinion in few words: "That the king, _pro
bono publico_, may charge his subjects for the safety and defence of
the kingdom, notwithstanding any act of parliament, and that a statute
derogatory from the prerogative doth not bind the king; and the king
may dispense with any law in cases of necessity." Finch, the adviser
of the ship-money, was not backward to employ the same argument in
its behalf. "No act of parliament," he told them, "could bar a king of
his regality, as that no land should hold of him, or bar him of the
allegiance of his subjects or the relative on his part, as trust and
power to defend his people; therefore acts of parliament to take away
his royal power in the defence of his kingdom are void; they are void
acts of parliament to bind the king not to command the subjects, their
persons, and goods, and I say, their money too; for no acts of
parliament make any difference."
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