The Government of England (Vol. I)Lowell, A. Lawrence (Abbott Lawrence)
History
The Government of England (Vol. I)
Lowell, A. Lawrence (Abbott Lawrence)
Great Britain -- Politics and government
flocks; could cause every dog to be muzzled, every pauper to eat leeks,
every child in the public elementary schools to study Welsh; and could
make all local improvements, such as tramways and electric light,
well-nigh impossible.
[Sidenote: Powers that have been Lost.]
Great as the prerogative is to-day, it was, in some directions, even
more extensive in the past, and men are in the habit of repeating the
phrases derived from that past after they have lost their meaning. This
is done by writers who are not under the slightest misapprehension in
regard to the actual legal authority of the Crown. It is the habit, for
example, to speak of the Crown as the fountain of justice, and even an
author so learned and accurate as Todd repeats Blackstone's statement
that "By the fountain of justice, the law does not mean the author or
original, but only the distributor. Justice is not derived from the
king, as from his free gift, but he is the steward of the public, to
dispense it to whom it is due. He is not the spring, but the reservoir,
from whence right and equity are conducted by a thousand channels to
every individual."[24:2] Now apart from public prosecution by the state,
which is less common in England than elsewhere, and the use of the
King's name in judicial process, the only legal connection of the Crown
with the distribution of justice to-day lies in the appointment of the
judges; and to call it on that account the reservoir of justice is
merely fanciful. There was a time when the Crown was really the fountain
or reservoir of justice, when it might fairly have been said to
administer justice by deputy. It created the Common Law courts, and
after the growth of civilisation had produced more refined and complex
ideas of justice it received petitions for the redress of wrongs not
recognised before, and established new courts to deal with them. Stubbs
has compared the process to that of the sun throwing off a series of
nebulous envelopes, which rolled up into compact bodies, but left the
old nucleus of light to assert its vitality, unimpaired by successive
emanations.[25:1] In this way the courts of equity arose to give relief
in cases where there was no remedy by the strict rules of the Common
Law, while the Star Chamber performed an analogous function in criminal
matters. This last tribunal came to be used as a political engine under
the Stuarts, and was abolished by statute[25:2] early in the struggle
with Charles I. With the fall of the Stuarts the power of the Crown to
create new courts came to an end altogether. In 1689 the Bill of Rights
declared the "Court of Commissioners for Ecclesiastical Causes, and all
other Commissions and Courts of a like Nature," illegal, and since that
time an Act of Parliament has been necessary to create any new court of
justice in England.
Public-domain text, read in full here on John Shaqi.
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