CHAPTER VII.

THE SAME SUBJECT CONTINUED.

BUT this force of the prerogative of the Commons, and the facility with which it may be exerted, however necessary for the first establishment of the constitution, might prove too considerable at present, when it is requisite only to support it. There might be the danger, that, if the parliament should ever exert their privilege to its full extent, the prince, reduced to despair, might resort to fatal extremities; or that the constitution, which subsists only by virtue of its equilibrium, might in the end be subverted.

Indeed, this is a case which the prudence of parliament has foreseen. They have, in this respect, imposed laws upon themselves and, without touching the prerogative itself, they have moderated the exercise of it. A custom has for a long time prevailed, at the beginning of every reign, and in the kind of overflowing of affection which takes place between a king and his first parliament, to grant the king a revenue for his life: a provision which, with respect to the great exertions of his power, does not abridge the influence of the Commons, but yet puts him in a condition to support the dignity of the crown, and affords him, who is the first magistrate in the nation, that independence which the laws insure also to those magistrates who are particularly intrusted with the administration of justice.*

measure.

different nature to bills that had grants for their object, I only mean to show the great efficiency of that power, which was the subject of this chapter, without pretending to say any thing as to the propriety of the The House of Lords have even found it necessary (which confirms what is said here) to form, as it were, a confederacy among themselves, for the security of their legislative authority, against the unbounded use which the Commons might make of their power of taxation; and it has been made a standing order of their House, to reject any bill whatsoever to which a money-bill has been tacked.

*The twelve judges.-Their commissions, which in former times were often given them durante bene placito, now must always "be made quamdiu se bene gesserint, and their salaries ascertained; but, upon an address of both Houses, it may be lawful to remove them."-Stat. 13, Will. III. c. 2. In the first year of the reign of his present [late]

THE GRANTING OF A CIVIL LIST.

69

This conduct of the parliament provides an admirable remedy for the accidental disorders of the state. For though, by the wise distribution of the powers of government, great usurpations are become in a manner impracticable, nevertheless it is impossible but that, in consequence of the continual (though silent) efforts of the executive power to extend itself, abuses will at length slide in. But here the powers, wisely kept in reserve by the parliament, afford the means of remedying them. At the end of each reign, the civil list, and consequently that kind of independence which it procured, are at an end. The successor finds a throne, a sceptre, and a crown; but he finds neither power, nor even dignity; and before a real possession of all these things be given him, the parliament may have it in their power to take a thorough review of the state, as well as correct the several abuses that may have crept in during the preceding reign; and thus the constitution may be brought back to its first principles.*

England, therefore, by this mean, enjoys one very great advantage, one that all free states have sought to procure for themselves; I mean that of a periodical reformation. But the expedients which legislators have contrived for this purpose in other countries, have always, when attempted to be carried into practice, been found to be productive of very disadvantageous consequences. Those laws which were made in Rome, to restore that equality which is the essence of a democratical government, were always found impracticable: the attempt alone endangered the overthrow of the republic; and the expedient which the Florentines called ripigliar il stato proved nowise happier in its consequences. This was because all those different remedies were destroyed beforehand, by the very evils they were meant to cure; and the greater the abuses were, the more impossible it was to correct them.

But the mean of reformation which the parliament of England has taken care to itself, is the more effectual, as it

majesty, it was moreover enacted, that the commissions of the judges should continue in force notwithstanding the demise of the king; which has prevented their being dependent, with regard to their continuation in office, on the heir apparent. [There are now fifteen judges.-Ed.] *See Supplemental Illustrations, No. 3.

goes less directly to its end. It does not oppose

the usurpations of prerogative, as it were, in front: it does not encounter it in the middle of its career, and in the fullest flight of its exertion; but it goes on in search of it to its source, and to the principle of its action. It does not endeavour

forcibly to overthrow it; it only enervates its springs.

What increases still more the mildness of the operation, is, that it is only to be applied to the usurpations themselves, and passes by what would be far more formidable to encounter, the obstinacy and pride of the usurpers.

Every thing is transacted with a new sovereign, who, till then, has had no share in public affairs, and has taken no step which he may conceive himself bound in honour to support. In fine, they do not wrest from him what the good of the state requires he should give up; he himself makes the sacrifice.

The truth of all these observations is remarkably confirmed by the events that followed the reign of the two last Henrys. Every barrier that protected the people against the incursions of power had been broken through. The parliament, in their terror, had even enacted that proclamations, that is, the will of the king, should have the force of laws:* the constitution seemed really undone. Yet, on the first opportunity afforded by a new reign, liberty began again to make its appearance. And when the nation, at length recovered from its long supineness, had, at the accession of Charles the First, another opportunity of a change of sovereign, that enormous mass of abuses, which had been accumulating, or gaining strength, during five successive reigns, was removed, and the ancient laws were restored.

To which add, that this second reformation, which was so extensive in its effects, and might be called a new creation of the constitution, was accomplished without producing the least convulsion. Charles the First, in the same manner as Edward the Sixth (or his uncle, the regent duke of Somerset)

* 2 Stat. 31 Hen. VIII. cap. 8.

The laws concerning treason, passed under Henry the Eighth, which Judge Blackstone calls "an amazing heap of wild and newfangled treasons," were, together with the statute just mentioned, repealed in the beginning of the reign of Edward VI.

POWER OF STOPPING THE SUPPLIES.

71

had done in former times, assented to every regulation that was passed; and whatever reluctance he might at first manifest, yet the Act called the Petition of Right (as well as the bill which afterwards completed the work) received the royal sanction without bloodshed.

It is true, great misfortunes followed; but they were the effects of particular circumstances. The nature and extent of regal authority not having been accurately defined during the time which preceded the reigns of the Tudors, the exorbitant power of the princes of that house had gradually introduced political prejudices, of even an extravagant kind: those prejudices, having had a hundred and fifty years to take root, could not be shaken off but by a kind of general convulsion; the agitation continued after the action, and was carried to excess by the religious quarrels that arose at that time.

CHAPTER VIII.

NEW RESTRICTIONS.

THE Commons, however, have not entirely relied on the advantages of the great prerogative with which the constitution has intrusted them.

Though this prerogative is, in a manner, out of danger of an immediate attack, they have nevertheless shown at all times the greatest jealousy on its account.

They never suffer, as we have observed before, a money-bill to begin any where but with themselves; and any alteration that may be made in it, in the other house, is sure to be rejected. If the Commons had not most strictly reserved to themselves the exercise of a prerogative on which their very existence depends, the whole might at length have slidden into that other body, which they might have suffered to share in it equally with them. If any other persons, besides the representatives of the people, had a right to make an offer of the produce of the labour of the people, the executive power would soon

have forgetten that it only exists for the advantage of the public.*

Besides, though this prerogative has of itself, we may say, an irresistible efficiency, the parliament has neglected nothing that may increase it, or at least the facility of its exercise; and though they have allowed the general prerogatives of the sovereign to remain undisputed, they have in several cases endeavoured to restrain the use he might make of them, by entering with him into divers express and solemn conventions for that purpose.†

Thus, the king is indisputably invested with the exclusive

*As the Crown has the undisputed prerogative of assenting to, and dissenting from, what bills it thinks proper, as well as of convening, proroguing, and dissolving the Parliament whenever it pleases, the latter have no assurance of having a regard paid to their bills, or even of being allowed to assemble, but what may result from the need the Crown stands in of their assistance: the danger, in that respect, is even greater for the Commons than for the Lords, who enjoy a dignity which is hereditary as well as inherent to their persons, and form a permanent body in the state; whereas the Commons completely vanish whenever a dissolution takes place: there is, therefore, no exaggeration in what has been said above, that their very being depends on their power of granting subsidies to the Crown.

Moved by these considerations, and, no doubt, by a sense of their duty towards their constituents, to whom this right of taxation originally belongs, the House of Commons have at all times been very careful lest precedents should be established, which might, in the most distant manner, tend to weaken that right. Hence the warmth, I might say the resentment, with which they have always rejected even the amendments proposed by the Lords in their money-bills. The Lords, however, have not given up their pretension to make such amendments; and it is only by the vigilance and constant predetermination of the Commons to reject all alteration whatever made in their money-bills, without even examining them, that this pretension of the Lords is reduced to be an useless and only dormant claim.

[If the alterations, however, proposed by the Peers be clearly for the public good, the Commons will bring in a new bill (by form of cour tesy), embodying the proposed alterations, and pass it instead of the original bill.-Ed.]

Laws made to bind such powers in a state as have no superior power by which they may be legally compelled to the execution of them (for instance, the Crown, as circumstanced in England), are nothing more than general conventions, or treaties, made with the body of the people.