Front Page Titles (by Subject) Conclusion of the Period, from the Norman Conquest. - An Historical View of the English Government
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Conclusion of the Period, from the Norman Conquest. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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Conclusion of the Period, from the Norman Conquest.
When we review the English constitution, under the princes of the Norman, the Plantagenet, and the Tudor line, it appears to illustrate the natural progress of that policy which obtained in the western part of Europe, with such peculiar modifications, as might be expected, in Britain, from the situation of the country, and from the character and manners of the inhabitants. By the completion of the feudal system, at the Norman conquest, the authority of the sovereign was considerably encreased; at the same time that his powers, in conformity to the practice of every rude kingdom, were, in many respects, discretionary and uncertain. The subsequent progress of government produced a gradual exaltation of the<471> crown; but the long continued struggle between the king and his barons, and the several great charters which they extorted from him, contributed to ascertain and define the extent of his prerogative. While the monarchy was thus gaining ground upon the ancient aristocracy, the constitution was acquiring something of a regular form, and, by the multiplication of fixed laws, provision was made against the future exertions of arbitrary power.
By the insular situation of Britain, the English were little exposed to any foreign invasion, except from the Scots, whose attacks were seldom very formidable: and hence the king, being prevented from engaging in extensive national enterprizes, was deprived of those numerous opportunities for signalizing his military talents, and for securing the admiration and attachment of his subjects, which were enjoyed by the princes upon the neighbouring continent. Thus the government of England, though it proceeded in a similar course to that of the other monarchies in Europe, became less absolute than the greater part of them;<472> and gave admittance to many peculiar institutions in favour of liberty.
The same insular situation, together with the climate and natural produce of the country, by encouraging trade and manufactures, gave an early consequence to the lower order of the inhabitants; and, by uniting their interest with that of the king, in opposing the great barons, disposed him to encrease their weight and importance in the community. Upon this account, when the crown had attained its greatest elevation, under the princes of the Tudor family, the privileges of the commons were not regarded as hostile to the sovereign, but were cherished and supported as the means of extending his authority.
In consequence of these peculiar circumstances, the government of England, before the accession of James the first, had come to be distinguished from that of every other kingdom in Europe: the prerogative was more limited; the national assembly was constituted upon a more popular plan, and possessed more extensive powers; and, by the intervention of<473> juries, the administration of justice, in a manner consistent with the rights of the people, was better secured.
These peculiarities, it is natural to suppose, could hardly escape the attention of any person, even in that period, who had employed himself in writing upon the government of his country. And yet the historian, whom I formerly quoted,11 imagines that, before the reign of James the first, the English had never discovered any difference between their own constitution and that of Spain or France; and declares “that he has not met with any writer in that age, who speaks of England as a limited monarchy, but as an absolute one, where the people have many privileges.”* This appears the more extraordinary, as foreigners, he acknowledges, were sufficiently sensible of the distinction. “Philip de Comines12 remarked the English constitution to be more popular, in his time, than that of France. And Cardinal Bentivoglio13 mentions the English government as similar to that of the Low Countries under their<474> princes, rather than to that of France or Spain.”*
To prove that English authors did not conceive their government to be a limited monarchy, it is farther observed, that Sir Walter Raleigh,14 a writer suspected of leaning towards the puritanical party, divides monarchies into such as are entire, and such as are limited or restrained; and that he classes the English government among the former. It must be observed, however, that by a limited monarchy, in this passage, is meant that in which the king has not the sovereignty in time of peace, as in Poland. This is the explanation which the author himself gives of his doctrine.
But not to insist upon the expressions of Sir Walter Raleigh, a courtier, who thought it incumbent upon him to write of queen Elizabeth in a style of romantic love; an adventurer, continually engaged in projects which required the countenance and support of the prince; I shall mention two English writers, whose authority upon this point will perhaps be thought superior, and whose opinion is much more direct and explicit.<475>
The first is Sir John Fortescue,15 the lord chief justice, and afterwards the chancellor to Henry the sixth, who has written a treatise upon the excellence of the English laws, and who, from his profession, as well as from the distinguished offices which he held by the appointment of the sovereign, will not readily be suspected of prejudices against the prerogative.† This author, instead of conceiving the English government to be an absolute monarchy, describes it in language that seems, in every respect, suitable to the state of our present constitution. After distinguishing governments into regal and political, that is, into absolute and limited, he is at pains, through the whole of his work, to inculcate, that the English government is of the latter kind, in opposition to the former. “The second point, most worthy prince, whereof you stand in<476> fear,” (I make use of the old translation, to avoid the possibility of straining the expression) “shall in like manner, and as easily as the other, be confuted. For you stand in doubt whether it be better for you to give your mind to the study of the laws of England, or of the civil laws; because they, throughout the whole world, are advanced in glory and renown above all men’s laws. Let not this scruple of mind trouble you, O most noble prince: for the king of England cannot alter nor change the laws of his realm, at his pleasure. For why, he governeth his people by power, not only regal but political. If his power over them were regal only, then he might change the laws of his realm, and charge his subjects with tallage and other burdens without their consent.”* —<477> The aim of a limited monarchy he afterwards explains more fully. “Now you understand,” says he, “most noble prince, the form of institution of a kingdom political; whereby you may measure the power, which the king thereof may exercise over the law, and subjects of the same. For such a king is made and ordained for the defence of the law of his subjects, and of their bodies, and goods, whereunto he receiveth power of his people, so that he cannot govern his people by any other power.”† —Then follows a more particular application of this doctrine to the constitution of England. “Now whether the statutes of England be good or not, that only remaineth to be discussed. For they proceed not only from the prince’s pleasure, as do the laws of those kingdoms<478> that are ruled only by regal government, where sometimes the statutes do so procure the singular commodity of the maker, that they redound to the hinderance and damage of his subjects.—But statutes cannot thus pass in England, for so much as they are made, not only by the prince’s pleasure, but also by the assent of the whole realm: so that of necessity they must procure the wealth of the people, and in no wise tend to their hinderance.”* —After stating some objections, in the name of the prince, he goes on; “Do you not now see, most noble prince, that the more you object against the laws of England, the more worthy they appear?—I see plainly, quoth the prince, that in the case wherein you have now travailed, they have the pre-eminence above all other laws<479> of the world; yet we have heard that some of my progenitors, kings of England, have not been pleased with their own laws, and have therefore gone about to bring in the civil laws to the government of England, and to abolish their own country laws. For what purpose and intent they so did I much marvel.—You would nothing marvel thereat, quoth the chancellor, if you did deeply consider with yourself the cause of this intent. For you have heard before, how that among the civil laws, that maxim or rule is a sentence most notable, which thus singeth, The prince’s pleasure standeth in force of a law; quite contrary to the decrees of the laws of England, whereby the king thereof ruleth his people, not only by regal but also by political government; insomuch that, at the time of his coronation, he is bound by an oath to the observance of his own law: which thing some kings of England, not well brooking, as thinking that thereby they should not freely govern their subjects as other kings do, whose rule is only regal, governing their people by the civil law, and chiefly by that foresaid maxim of the<480> same law, whereby they, at their pleasure, change laws, make new laws, execute punishments, burden their subjects with charges; and also, when they list, do determine controversies of suitors, as pleaseth them. Wherefore these your progenitors went about to cast off the yoke political, that they also might rule, or rather rage over the people their subjects in regal wise only: not considering that the power of both kings is equal, as in the foresaid treatise of the law of nature is declared; and that to rule the people by government political is no yoke, but liberty, and great security, not only to the subjects, but also to the king himself, and further no small lightening or easement to his charge. And that this may appear more evident unto you, ponder and weigh the experience of both regiments; and begin with the king of France, perusing after what sort he ruleth his subjects, by regal government alone: and then come to the effect of the joint governance, regal and political, examining by experience how and in what manner the king of England governeth his<481> subjects.”* After these observations, the author, in two separate chapters, contrasts the<482> misery produced by the absolute government in France with the happiness resulting from the limited monarchy in England. The whole treatise is well worth an attentive perusal; as it contains the judgment of a celebrated lawyer, concerning the mixed form of the English constitution, at a period when some have conceived it be no less arbitrary and despotical than that which was established in France or in any other kingdom of Europe.
It will occur to the reader, that the opinion of Sir John Fortescue, in the passages above quoted, is widely different from that of Mr. Hume, who maintains that the legislative power of the English parliament was a mere fallacy.
The other English writer, from whose authority it appears that the government of Eng-<483>land was, at this time, understood to be a limited monarchy, is Sir Thomas Smith,16 a distinguished lawyer, and principal secretary both to Edward the sixth and to Elizabeth. In his Commonwealth of England; a work which unites liberality of sentiment with some philosophy; this author, after explaining the origin and progress of government, has occasion to consider more particularly the nature of the English constitution. “The most high and absolute power,” says he, “of the realm of England, consisteth in the parliament.—The parliament abrogateth old laws, maketh new, giveth order for things past, and for things hereafter to be followed, changeth rights and possessions of private men, legitimateth bastards, establisheth forms of religion, altereth weights and measures, giveth form of succession to the crown, defineth of doubtful rights, whereof no law is already made, appointeth subsidies, tailles, taxes, and impositions, giveth most free pardons and absolutions, restoreth in blood and name, as the highest court, condemneth or absolveth them whom the prince will<484> put to that trial. And, to be short, all that ever the people of Rome might do, either in centuriatis, comitiis, or tributis, the same may be done by the parliament of England, which representeth, and hath the power of the whole realm, both the head and the body. For every Englishman is intended to be there present, either in person or by procuration and attorney, of what preeminence, state, dignity, or quality soever he be, from the prince to the lowest person of England. And the consent of the parliament is taken to be every man’s consent.”* —Among the privileges of parliament, mentioned by this well-informed writer, one is, that the members “may frankly and freely say their minds, in disputing of such matters as may come in question, and that without offence to his majesty.”† —He also enumerates the several branches of the prerogative; such as that of making peace and war, of coining money, of appointing the higher officers and magistrates of the realm,<485> of drawing the tenths and first fruits of ecclesiastical benefices, of issuing writs and executions, of levying the wardship, and first marriage, of all those who hold of the king in chief. What he says concerning the dispensing power of the sovereign deserves particular notice, as he mentions the foundation of that power, and the limitations under which it was understood to be exercised.
“The prince,” he observes, “useth also to dispense with laws made, whereas equity requireth a moderation to be had, and with pains for transgressing of laws, where the pain of the law is applied only to the prince. But where the forfeit, (as in popular actions chanceth many times) is part to the prince, the other part to the declarator, detector, or informer, there the prince doth dispense for his own part only. Where the criminal is intended by inquisition (that manner is called with us at the prince’s suit) the prince giveth absolution or pardon, yet with a clause modo stet rectus in curia, that is to say, that no man object against the offender. Whereby, notwithstanding that he hath the<486> prince’s pardon, if the person offended will take upon him the accusation (which in our language is called the appeal) in cases where it lieth, the prince’s pardon doth not serve the offender.”* With what reason, therefore, or plausibility, can it be asserted, that no lawyer, in the reign of Elizabeth, conceived the English constitution to be a limited monarchy?
In perusing these accounts of the English government, we cannot fail to remark, that they are so little enforced by argument, and delivered with such plainness and simplicity, as makes it probable that they contained the doctrines universally received in that age, and which had never been the subject of any doubt or controversy.
The views of this important question, which have been suggested by other writers, it is not my intention to examine. But the opinions of this eminent historian are entitled to so much regard, and appear, in this case, to have so little foundation, that I could not help thinking it improper to pass them over in<487> silence. The improvements made in the English government, from the accession of the house of Stewart to the present time, with the present state of the British constitution in all its principal branches, are intended for the subject of a future inquiry.
end of the second volume.
SETTLEMENT OF THE SAXONS IN BRITAIN
THE REVOLUTION IN 1688.
To which are subjoined,
SOME DISSERTATIONS CONNECTED WITH THE
HISTORY OF THE GOVERNMENT,
From the Revolution to the Present Time.
BY JOHN MILLAR ESQ.
Professor of Law in the University of Glasgow
IN FOUR VOLUMES
printed for j. mawman, no 22 in the poultry.
By T. Gillet, Salisbury-Square
AN HISTORICAL VIEW OF THE ENGLISH GOVERNMENT
[11. ]See HE, 5:562.
[* ]See note Q, at the end of vol. VI.
[12. ]Philip de Comines (ca. 1447–ca. 1511): French historian, courtier, and diplomat, author of Mémoires sur les règnes de Louis XI et de Charles VIII (1464–98).
[13. ]Guido Bentivoglio (1579–1644), Italian cardinal and author of Historia della guerra di Fiandra (1668).
[* ]See note Q, at the end of vol. VI.
[14. ]Sir Walter Raleigh (1552–1618): English courtier, navigator, and author. Raleigh wrote an unfinished History of the World (1614), as well as The Prerogative of Parliaments (1628), and The Cabinet Council (1658).
[15. ]On Fortescue, see p. 356, note 18.
[† ]This book was translated into English, and published in the reign of Elizabeth, by Robert Mulcaster, a student of law, and dedicated to one of her justices of the Common Pleas. From the dedication, it should seem that the doctrines contained in this publication, were not understood to be, in any degree, offensive to administration, or contrary to the ideas, of the English constitution, entertained by the lawyers of that reign.
[* ]“Secundum vero, princeps, quod tu formidas, consimili nec majori opera elidetur. Dubitas nempe, an Anglorum legum, vel civilium studio te conferas, dum civiles supra humanas cunctas leges alias, fama per orbem extollat gloriosa. No te conturbet, fili regis, hae mentis evagatio: nam non potest rex Angliae ad libitum suum, leges mutare regni sui. Principatu namque, nedum regali, sed et politico, ipse suo populo dominatur. Si regali, tantum ipse praeesset iis, leges regni sui mutare ille posset, tallagium quoque at caetera onera eis imponere ipsis inconsultis.”—Fortescue, de Laudibus Legum Angliae, c. 9. [[Millar includes the Latin in his note, and in the text uses the Robert Mulcaster translation. For a modern translation, see Sir John Fortescue, On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997), 17.]]
[† ]“Habes in hoc jam, princeps, instituti omnis politici regni formam, ex qua metire poteris potestatem quam rex ejus in leges ipsius, aut subditos valeat exercere. Ad tutelam namque legis subditorum, ac eorum corporum, et bonorum, rex hujusmodi erectus est; et ad hanc potestatem a populo effluxam ipse habet, quo ei non licet potestate alia suo populo dominari.”—Cap. 13. [[See Fortescue, Laws and Governance, 21–22.]]
[* ]“Statuta tunc Anglorum, bona sint necne, solum restat explorandum. Non enim emanant illa a principis solum voluntate, ut leges in regnis quae tantum regaliter gubernantur, ubi quandoque statuta ita constitutentis procurant commodum singulare, quod in ejus subditorum ipsa redundant dispendium.—Sed non sic Angliae statuta oriri possunt, dum nedum principis voluntate, sed et totius regni assensu, ipsa conduntur, quo populi laesuram illa efficere nequeunt, vel non eorum commodum procurare.”—Cap. 18. [[See Fortescue, Laws and Governance, 27.]]
[* ]“Nonne vides jam, princeps clarissime, leges Angliae tanto magis clarescere, quanto eisdem tu amplius reluctaris? Princeps, video, inquit, et eas inter totius orbis jura (in casu quo tu jam sudasti) praefulgere considero; tamen progenitorum, meorum Angliae regnum quosdam audivimus, in legibus suis minime delectatos, satagentes proinde leges civiles ad Angliae regimen inducere, et patrias leges repudiare conatos: horum revera consilium vehementer admiror. Cancellarius. Non admirareris, Princeps, si causam hujus conaminis mente solicita pertractares. Audisti namque superius quomodo inter leges civiles praecipua sententia est, maxima sive regula illa quae sic canit, quod principi placuit legis habet vigorem: qualiter non sanciunt leges Angliae, dum nedum regaliter, sed et politice rex ejusdem dominatur in populum suum, quo ipse in coronatione sua ad legis suae observantiam astringitur sacramento; quod reges Angliae aegre ferentes, putantes proinde se non libere dominari in subditos, ut facient reges regaliter tantum principantes, qui lege civili, et potissime predicta legis illius maxima, regulant plebem suam, quo ipsi, ad eorum libitum, jura mutant, nova condunt, poenas infligunt, et onera imponunt subditis suis, propriis quoque arbitriis, contendentium, cum velint dirimunt lites. Quare moliti sunt ipsi progenitores tui hoc jugum politicum abjicere, ut consimiliter et ipsi in subjectum populum regaliter tantum dominari, sed potuis debacchari queant: non attendentes quod aequalis est utriusque regis potentia; ut in predicto tractatu de natura legis naturae docetur; et quod non jugum sed libertas est politice regere populum, securitas quoque maxima nedum plebi, sed et ipsi regi, allevatio etiam non minima solicitudinis suae. Quae ut tibi apertius pateant, utriusque regiminis experientiam percunctare, et a regimine tantum regali, qualiter rex Franciae principatur in subditos suos, exordium sumito: deinde a regalis et politici regiminis effectu, qualiter rex Angliae dominatur in sibi subditos populos, experientiam quaere.” Vide cap. 32, 33, 34. [[See Fortescue, Laws and Governance, 47–49.]]
[16. ]Sir Thomas Smith (1513–77): English classical scholar, professor of civil law at Cambridge, and author of De Republica Anglorum (The Commonwealth of England), London, 1583. A prominent Protestant, his fortunes rose and fell with the reigns of Henry VIII, Edward VI, Mary, and Elizabeth. These passages are from The Commonwealth of England (London, 1612), 36–37, 40, 48.
[* ]Commonwealth of England, b. ii. ch. 2.
[† ]Ibid. ch. 3.
[* ]Commonwealth of England, b. ii. ch. 4.