A History and Defence of Magna Charta/Chapter 1
AN
ESSAY
ON
PARLIAMENTS.
CHAP. I.
If a man would have an entire view of the Engliſh conſtitution, he muſt have recourſe to thoſe able and approved authors who have written purpoſely on that ſubject. For it is a rule, Parva eſt authoritas aliud agentis; and what is ſaid by the by, is of leſs weight, than what is profeſſedly handled; provided it have been maturely conſidered, by a competent judge of that matter which he treats. And in this kind we do not find a man better qualified than the learned lord chancellor Fortescue, who was an aged lawyer, and had been lord chief juſtice of England when he wrote his book De laudibus Legem Angliæ, which was on purpoſe in a dialogue with the prince of Wales, to inform him of the nature of the Engliſh conſtitution, and to let him know by what ſort of laws the realm, in which he was to ſucceed his father, was to be governed. And therefore he adjures him over and over again to addict himſelf to the underſtanding of the laws of his father’s realm, wherein he was to ſucceed; and having ſhewn the prince the different nature of realms, where a King could tyrannize, and where he could not, being reſtrained by politic laws. Rejoice therefore, ſays he, moſt excellent prince! and be glad, That the law of the realm, in which you are to ſucceed, is ſuch, for it ſhall exhibit and miniſter to you and your people no ſmall ſecurity of comfort.
But out of that excellent book which I believe no way warped, (for then it muſt lean towards the court, partly becauſe of the flattery and officiouſneſs, which are too often found in dialogues with princes, and partly becauſe the author was retained on the crown-ſide by the greateſt office in England) I will confine myſelf to thoſe paſſages only which relate to the frequency of parliaments. And the firſt I meet with is in his 18th chap. concerning the ſtatutes of England[1].
“And if theſe ſtatutes fall ſhort of their intended efficacy, though deviled with ſuch great ſolemnity and wiſdom of parliament; they may very quickly be reformed, but not without the aſſent of the commons and peers of the realm, which was their ſource from the beginning.”
Now I only deſire that the word Concito may be taken notice of, which is the quickeſt word that can be imagined, and ſhews that our parliaments were always at hand; and the whole paſſage ſhews for what wiſe and juſt reaſons they were ſo.
The next paſſage is chap. xliii. fol. 129. a[2]. “Neither do the laws of England allow in lawſuits, frivolous and fruitleſs delays. And if in this kingdom, delays in pleas, which are not to the purpoſe, ſhould be uſed, they may, in every parliament, be cut off. Yea, and all other laws uſed in the realm, when they halt, or are defective in any point, they may, in every parliament, be ſet to rights. Whereupon it may be rightly concluded, that the laws of England are the beſt in the world, either actually or potentially, ſince they can eaſily be brought into act or being. To the performance whereof, as often as equity ſo requires, every King is bound by an oath ſolemnly taken at the time of receiving his crown.”
Out of this laſt paſſage I will not trouble you with any more obſervations than theſe:
First, That parliaments are the remedy againſt delays in law proceedings; but how, if parliaments themſelves ſhould be delayed?
Secondly, That if any or all our laws ſhould halt, and our parliaments, at the ſame time, ſhould be crippled too, and not be able to come together; they could not help one another.
In the next and laſt chapter of that book, fol. 129. b. the prince immediately replies[3]:
“My lord chancellor, by the tenour of your diſcouſe in this dialogue I am thoroughly ſatisfied, That the laws of England are not only good, but the beſt in the world. And in caſe any of the laws want to be mended or improved, the rules of the Engliſh parliaments do inſtruct us, That that may be done forthwith. Whereupon, the realm of England is always governed by the beſt laws, either in reality or in poſſibility. And beſides, I conjecture that the doctrines that have been held forth in this dialogue, will be very uſeful to the Kings of England that ſhall come hereafter; ſince no body likes to govern by laws which they do not like.”
After all theſe lauds and praiſes of Engliſh laws, which the chancellor has ſtuck all over with ſtars quite through his book, and has made their perfection to centre in this, that they either are or ſoon may be, the beſt in the world; becauſe, in caſe they labour under any defect, that fault may be immediately amended by a wife ſenate: What if that wiſe ſenate be no where to be found, or is at no certainty? It is then impoſſible to render the chancellor’s Latin into Engliſh. For the ſpeedy perfection of the Engliſh laws, in which the prince and he are agreed is concito & citiſſime, may be rendered, either at the four year’s end, or the twelve year’s end, or at the world’s end. For ſo I am ſatisfied it was meant, after a ten year’s interval of parliaments, if the herb-woman at Edinburgh had not thrown her cricket-ſtool at the archbiſhop’s head. And ſo Dr. Heylin, I remember, does not ſo much acknowledge that ſecret as juſtify it. It is in his little book of obſervations upon Hammond l’Estrange’s hiſtory of the reign of K. Charles I. Says Hammond, Upon the diſſolution of that wiſe parliament in 1628 (to whom we owe the petition of right) all wiſe men concluded that there was an end of all parliaments. Yes, ſays Heylin, ſo they might well, the King having been troubled with their impertinences, and having an example in France before his eyes, where parliaments have been ſo much diſcontinued, that it is become a proverb amongſt them, Voyons le Jeu de Trots Eſtats, as the ſtrangeſt ſight which can be ſeen in an age. I have not the book now by me, but I will be anſwerable for the ſubſtance of this quotation, having retained this paſſage in my head above theſe five and twenty years.
I can only touch ſeveral other arguments which might be enlarged upon. The high court of parliament is the dernier reſſort in this kingdom; and if that fail, there may be a failure of the Engliſh juſtice.
Bracton ſays of an ambiguous or difficult cauſe, Reſpectuetur ad magnam curiam; but unleſs parliaments be frequent, ſuch a cauſe is adjourned to a long day.
Every body that underſtands the Engliſh conſtitution, knows that it is exactly the ſame as it was laid down in parliament 8 Edward IV. by the lord chancellor that then was. You have it in Sir Robert Cotton’s abridgment of the Rolls in the Tower, p. 682. in theſe words: “He then declared the three eſtates to comprehend the governance of this land, the preheminence whereof, was to the King as chief, the ſecond to the lords and biſhops, and the third to the commons.” Now if we are at a loſs or uncertainty about our parliaments, we are at a loſs or uncertainty about two thirds of our government.
But I will ſay no more upon this head, intending to ſhew in the following chapters, how the matter of parliaments ſtood in former ages.
- ↑ Et ſi ſtatuta hæc, tanta ſolemnitate & prudentia edita, efficaciæ tantſ, quantæ condituorum cupiebat intentio, non eſſe contingant: concito reformari ipſa poſſunt, at non ſine communitatis & procerum regni illius aſſenſu, quali ipſa primitus emanarunt.
- ↑ Neque leges Angliae frivolas & infructuoſas permittunt inducias. Et ſiquae in regno illo dilationes in plocitis minus accommodae fuerint uſitatae, in omni parliamento amputari illae poſſunt: etiam & omnes leges aliae in regno illo uſitatae, cum in aliquo claudicaverint, in omni parliamento poterunt reformari. Quo recte concludi poteſt, quod omnes leges regni illius optimæ ſunt in actu vel potentia, quo faciliter in actum duci poterunt & in eſſentiam realem. Ad quod fa iendum, quoties aeguitas id popoſcerit, ſinguli Reges ibidem ſacramento aſtringuntur, ſolemniter praeſtito tempore receptionis diadematis ſui.
- ↑ Princeps. Leges illas, nedum bonas ſed & optimas eſſe cancellarie, ex proſecutione tua in hoc dialogo certiſſime deprehendi. Et ſiquae ex illis meliorari depoſcant, id citiſſime fieri poſſe parliamentorum ibidem formulae nos erudient. Quo realiter, potentialiterve, regnum illud ſemper praeſtantiſſimis iegibus gubernatur. Nec tuas in hac concionatione doctrinas futuris Angliae regibus inutiles fore conjicio; dum non delectent regere legibus quae non delectant.