View of the State of Europe during the Middle Ages, Vol. 3Hallam, Henry
History
View of the State of Europe during the Middle Ages, Vol. 3
Hallam, Henry
Europe -- History -- 476-1492; Middle Ages
series of parliamentary proceedings which I have already produced, yet
there is a passage in Sir John Fortescue's treatise De Laudibus Legum
Angliæ, so explicit and weighty, that no writer on the English
constitution can be excused from inserting it. This eminent person,
having been chief justice of the King's Bench under Henry VI., was
governor to the young prince of Wales during his retreat in France, and
received at his hands the office of chancellor. It must never be
forgotten that, in a treatise purposely composed for the instruction of
one who hoped to reign over England, the limitations of government are
enforced as strenuously by Fortescue, as some succeeding lawyers have
inculcated the doctrines of arbitrary prerogative.
[Sidenote: Sir John Fortescue's doctrine as to the English
constitution.]
"A king of England cannot at his pleasure make any alterations in the
laws of the land, for the nature of his government is not only regal,
but political. Had it been merely regal, he would have a power to make
what innovations and alterations he pleased in the laws of the kingdom,
impose tallages and other hardships upon the people whether they would
or no, without their consent, which sort of government the civil laws
point out when they declare Quod principi placuit, legis habet vigorem.
But it is much otherwise with a king whose government is political,
because he can neither make any alteration or change in the laws of the
realm without the consent of the subjects, nor burthen them against
their wills with strange impositions, so that a people governed by such
laws as are made by their own consent and approbation enjoy their
properties securely, and without the hazard of being deprived of them,
either by the king or any other. The same things may be effected under
an absolute prince, provided he do not degenerate into the tyrant. Of
such a prince, Aristotle, in the third of his Politics, says, 'It is
better for a city to be governed by a good man than by good laws.' But
because it does not always happen that the person presiding over a
people is so qualified, St. Thomas, in the book which he writ to the
king of Cyprus, De Regimine Principum, wishes that a kingdom could be so
instituted as that the king might not be at liberty to tyrannize over
his people; which only comes to pass in the present case; that is, when
the sovereign power is restrained by political laws. Rejoice, therefore,
my good prince, that such is the law of the kingdom which you are to
inherit, because it will afford, both to yourself and subjects, the
greatest security and satisfaction."[372]
Public-domain text, read in full here on John Shaqi.
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